A Plea for a Workforce Presence PE Concept in a Post-Covid Digitalized World

Abstract

This paper begins with the recapitulation of the generally accepted view that the key problem with the current permanent establishment (PE) definition in international tax treaty law, particularly regarding the new digital economy, lies in its dependence on the existence of a fixed place of business in the source state. It continues with invoking what seems to have been the goal of the Base Erosion and Profit Shifting (BEPS) initiative, the BEPS promise, to conduct an extensive revision of the foundations of international tax law, among which the PE principle and the corresponding PE definition hold a prominent place, in order to ensure their endurance in the new digital age. An analysis of the Multilateral Instrument (MLI) provisions shows that, post 2017, the PE definition is exactly where it was in the past as the changes introduced by virtue of the MLI addressed long existing questions that arose in the distant analogous past. The author shows that the quest to compensate the market/user jurisdiction, which is driving the postMLI digital economy taxation debate. It is overly focused on one particular issue and overlooks the problem that digital business models are capable of creating their products and services anywhere without having a fixed place of business in the classical sense. Based on this premise, the paper concludes with a plea for the introduction of a new PE form – the work jurisdiction PE or, to be more precise, a workforce presence PE concept. This appeal also serves to bring the current international tax law debate more in accordance with the interests of developing countries. PE, fixed place of business, digital economy, home office, place of work.

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