Fast driftställe – ett för alla, alla för ett? - Svensk beskattningsrätt i ljuset av BEPS-projektets sjunde åtgärdspunkt
Sammanfattning: The Permanent Establishment status is a concept in the income tax law context. The term is defined in the Model Tax Convention of OECD and the Swedish Income Tax Act. The definition has with minor changes remained unchanged since its introduction. In today's increasingly globalized world, where multinational corporations are acting within and across national borders, weaknesses in the current permanent establishment concept have been identified. In 2013, OECD launched Base Erosion and Profit Shifting, the BEPS project, as a part of efforts to prevent aggressive international tax planning. The purpose of BEPS Action seven is to prevent artificial avoidance of the permanent establishment status and to ensure that taxes are paid in the State where the profits are attributable. In OECD Model Tax Convention the permanent establishment status is defined in its fifth article. Three sections of the article have been identified as particularly vulnerable to circumvention, Article 5.4, Article 5.5 and Article 5.6. These sections of article five are presented in the descriptive parts of the essay in their new proposed wording as well as in its current wording. These parts of the essay are presented from a de lege lata perspective. The purpose of BEPS Action seven is to extend the scope of the term and to limit the scope for eligibility under the derogation. The purpose of this essay is to determine how BEPS Action seven affects the definition of the permanent establishment status in Swedish domestic tax law. The Swedish definition of permanent establishment status is with minor changes considered to correspond to the current wording of the Model Tax Convention. However, if the model convention is given a new wording, it does not mean that the permanent establishment status in the Swedish Income Tax Act automatically has the corresponding meaning. This essay aims to identify and analyse possible implementation issues that may arise due to the implementation of BEPS Action seven into Swedish domestic law. The analytical section has its source in an argumentation of how Swedish domestic legislation should be designed to achieve the purpose of Action seven in the best possible way. In spite of the fact that Sweden decides to implement changes in the terms of the income tax law definition, the definition in tax treaties entered into by Sweden remains unchanged. To achieve the intended purpose of Action seven, the definition changes also must take place in the tax treaties. Since Sweden is a dualist state, the definition changes are required by legislation to be considered implemented into Swedish domestic law. Furthermore, it can be noted that BEPS Action seven offers Sweden an opportunity to increase taxation of foreign taxpayers through a more extensive tax claim.
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