Definition av fast driftställe - En analys av BEPS-projektets påverkan på svensk lagstiftning

Sammanfattning: We are living in a more international and global world than ever before and issues with international tax have never been so many. Because of this international tax rules have not kept up and the weaknesses in the current rules creates opportunities for base erosion and profit shifting. To prevent this G20 countries mandated OECD to adopt an Action Plan to address this problem. The Action plan came to be called “Base Erosion and Profit Shifting” (BEPS). Action 7 of the Action Plan includes changes that will be made to the definition of a permanent establishment in Article 5 of the OECD Model Tax Convention and its comments. This thesis examines what Action 7 means and what it can lead to. It also examines how Swedish domestic law may be affected. Finally, it examines if Action 7 fulfils its purpose. One conclusion that can be drawn from this thesis examination is that Action 7 will create more permanent establishment. Commissionaire that previously has been excepted from being a permanent establishment will create a permanent establishment unless they are very independent. The definition of an agent and an independent agent will be changed. The results of the work of Action 7 also mean that exceptions from creating a fixed place of business for permanent establishment for specific activities will apply only where the activity in question is preparatory or auxiliary in relation to the business as a whole. It will also be included a new anti-fragmentation rule that covers situations where activities in a country are “fragmented” between group companies to meet the exceptions for activities that are preparatory or auxiliary. Sweden is a member of the OECD and several of our tax treaties with other countries are based on the OECD Model Tax Convention. Sweden is a dualistic country, the result of Action 7 will not have a direct effect on Swedish domestic law but instead our definition of a permanent establishment in 2 sec. 19 § of the Swedish Income Tax Act first has to be changed. Even the European Union is working with international tax issues that BEPS try to achieve. As it looks like now the European Union will affect Swedish domestic law before the BEPS Action Plan. The results of Action 7 are a bit unclear and will affect situations where BEPS not has the purpose to affect. With other words enterprises that has special structures not because of tax reasons. Action 7 will create more permanent establishment but this does not automatically lead to that more profit can be allocated to these new permanent establishments. Action 7 therefore only partly fulfils its purpose and may better had been solved with transfer pricing rules.