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Studenteropgave: Speciale (inkl. HD afgangsprojekt)

  • Martin Kristian Johnsen
  • Daniel Klintø Bjerregaard
  • Niels Christensen
4. semester, Erhvervsøkonomi-jura, Kandidat (Kandidatuddannelse)
This thesis analyses the rules for determining a permanent establishment regarding an employee's use of a home office in relation to the business activities of the enterprise. In examining this, the thesis will analyse whether the Danish national rules on permanent establishment are in accordance with OECD regulations. The Convention lists two possible ways of constituting a permanent establish- ment. These are called the primary and the secondary criterion. There is an exception to these rules in Article 5(4), according to which, activities of a preparatory or auxiliary nature do not constitute a permanent establishment - insofar as these are not within the scope of the core business of the enter- prise.

The thesis finds that the assessment of a permanent establishment due to home office should be as- sessed in accordance with the primary criterion. The thesis will initially explain what underlying requirements are found in the primary criterion, and then how these requirements are applied in prac- tice by the Danish tax authorities. The analysed practice mainly deals with cases which directly con- cern home offices. It is found in the analysis that the Danish tax authorities address the issue of per- manent establishment, in relation to home offices, in accordance with OECD regulations to this effect. Furthermore, it shows that the decisions follow the associated comments to the Convention.

The thesis furthermore examines how the Swedish authorities process decisions of the same nature, with the purpose of making a comparative analysis between Swedish and Danish practices. The Swe- dish tax authorities' practice in the field of home offices is analysed, upon which the thesis concludes that Swedish authorities also interpret in accordance with OECD regulations. Thus, it could be de- duced that both the Danish and Swedish tax authorities are in accordance with the OECD's rules in relation to establishing a permanent place of business when an employee uses a home office. This comparative approach to the analysis is supported by a recent Spanish decision, which in addition turns out to have many of the same focus points to which the Danish and Swedish tax authorities attached importance in their decisions.
Therefore, it could be concluded that a home office may constitute a permanent establishment, pro- vided that the requirements in comment 6 to the OECD's model tax convention Art. 5(1) are met.
Udgivelsesdato19 maj 2022
Antal sider81
ID: 470666525