BEPS och fast driftställe - Hur påverkas svensk rätt av åtgärdspunkt 7?

Sammanfattning: The OECD initiated the BEPS project in 2013 with the purpose of eliminating tax avoidance and profit shifting. One of the actions in the project aims to change the current definition of permanent establishments in the OECD model convention, especially concerning dependent and independent agents. The current definition of a permanent establishment has, with the exception of minor changes, been in use since 1963 when the first model convention was published. Due to technological progress the definition has come to be regarded as outdated, providing companies with opportunities to circumvent the regulations and locate profits to countries other than those in which they have arisen. Articles 5.5 and 5.6 of the model convention have been considered to be particularly vulnerable to such forms of abuse. Currently, article 5.5 states that a permanent establishment arises for an enterprise if, in a specific country, there is a person with the authority to act on behalf of the enterprise who also has and habitually exercises the authority to conclude contracts in the name of the enterprise. There is, however, an exception in article 5.6 that provides the non-existance of a permanent establishment if the agent is independent, such as a commissionaire or a broker. In the proposed changes to the article the creation of a permanent establishment is no longer contingent on whether or not an agent has a power of attorney or signatory authority. Instead, it is sufficient if the agent has a leading roll in negotiations leading up to the conclusion of contracts. The proposed changes also state that contracts concluded by the agent no longer need to be in the name of the enterprise as long as they concern the transfer of ownership of products or services belonging to the enterprise. The explicit exception for commissionaires and brokers in article 5.6 is removed and furthermore, agents are no longer considered to be truly independent if they act exclusively or almost exclusively on behalf of one or more enterprises to whom they are closely related. While the current definition of a permanent establishment focuses on the legal capacity of the agent the proposed definition focuses on the actions of the agent, and the proposed changes could lead to numerous permanent establishments coming into existence. The effects of the propsed changes are uncertain as the process of implementation is yet to be determined. An ambulatory approach to the proposed changes is most likely not in accordance with statements made in doctrine, which means that current double tax agreements as well as domestic law would need to be modified. Another action proposed within the project is the creation of a multilateral instrument with the ability to change current treaties. This would mean that existing tax conventions would be included by the changes, but it is not obvious that signing such an instrument would be advantageous and it is presently not certain that it will be signed. Conversely, it would clearly be in Sweden’s best interests to implement the new definition in domestic law if enough countries choose to sign the multilateral instrument since the relative status of a tax agreement compared to domestic law would render the current definition more or less unusable. The proposed changes are most likely going to decrease the swedish tax base but if the proposed changes are not implemented other problems may occur, such as administrative burdens and a lack of legal security.