Fast driftställe 2.0 - En redogörelse för förslagen till beskattning av en betydande digital närvaro

Sammanfattning: Under current international tax law, profits of an enterprise are only taxable in the domicile of the enterprise unless it operates through a permanent establishment in another state. If the enterprise carries on business as aforesaid, profits attributable to the permanent establishment may be taxed in the other state. A permanent establishment is a fixed place of business where the physical location is the decisive criterion. If a physical nexus cannot be established, the business does not entail taxation. Digitalization, especially the collection and processing of user data, has enabled companies to generate significant profits without any physical presence in market jurisdictions. As a result, digital companies have become subject to a substantially lower taxation. The application of current principles on the digital economy has thus resulted in a significant discrepancy between where profits are taxed and where the value is actually created. The purpose of the present thesis is to account for challenges in countries' tax systems due to the emergence of the digital economy. The depiction is based on the proposals for taxation of a significant digital presence from the EU and the OECD. In addition, the aim is to investigate how the aforementioned proposals can affect current law. My overall assessment is that the proposals contribute with great value for the continued legal development. Nevertheless, some shortcomings remain. To base a tax claim on a company's user base would be fairly uncertain and unpredictable, especially for the taxpayer. It can hardly be argued that the mere existence of a user base is a direct result to profit. Likewise, it is not uncomplicated to identify which activity and which data is actually the value-generating. It is not infrequent that data collection takes place in a state, processing in another, with equipment in a third to finally be sold in the first. Consequently, according to said circumstances, it seems insufficient to only consider the market state where the company has a user base.