Besikeičianti nuolatinės buveinės samprata mokesčių teisėje

Abstract

The requirement of a permanent establishment as a precondition to taxing active income of non–residents in a source country was originally introduced more than a century ago. Nowadays permanent establishment continues to be one of the core elements of international taxation.
Permanent establishment represents the compromise between diverging interests of capital importing and exporting countries, from the legal point of view the concept operates by limiting the taxing powers of source and residence jurisdictions. Based on the compromise rule, a foreign enterprise becomes tax liable in the source country only if it maintains a permanent establishment in that country. In absence of a permanent establishment, the residence country has the exclusive taxing power. The coherent international taxation system, which could effectively prevent double taxation, requires a uniform interpretation of the concept of permanent establishment by national courts as well as tax law enforcement agencies.
This article elaborates on the issues of the changing concept of permanent establishment. The articles begins with the attempt to answer the question why the requirement of a permanent establishment has been first introduced and developed in the international tax treaties and how this has influenced the economical substance of the concept. Afterwards, the changes in the concept of permanent establishment due to the new forms of business as e–commerce are discussed. Further, the treatment of a permanent establishment as a functionally separate entity is also addressed here. Finally, the article discusses the requirement of EC law to grant permanent establishments the tax status close to the one of resident enterprises.
The main conclusion of the article is that the recent changes in the concept of permanent establishment reflect the general trend towards the creation of neutral tax regime irrespective of legal forms of business, reducing the differences between a subsidiary and a branch. At the same these changes, which are based on the interpretation of the concept, apparently indicates the need for a more radical reform of tax rules applicable to permanent establishments.