PE – what is it all about?

 When it comes to tax, global mobility teams tend to focus on the individual tax risk, with an awareness that there are corporate tax issues.  These issues are often referred to colloquially as “PE risk” – and while there are other corporate tax issues to consider, we will look at this first. 

So...what is PE? 🤔

PE in this context stands for permanent establishment (PE) and is created where a company remains tax resident in its “home” location but creates a taxable presence in another country. Broadly speaking, if a company has a PE in a country, then that country will seek to tax the profits that the company makes in that country. Given that the company is probably already paying tax on profits in its “home” country, an inadvertent creation of a PE in another county will probably be unwelcome. While double taxation is ultimately not likely, there is additional work needed through treaties and tax reliefs supported by clear accounting records to support any claims.  

Another area where having a PE or not is important is where an individual is working in a country for a short period. In these cases, they will often rely on a double taxation agreement to exempt them from tax in that country. A common condition for that exemption, among others, is that the compensation costs for the individual (so salary, benefits etc) are not borne by a permanent establishment of their employer in the country that they are visiting.  

Creating a PE 🌟

It is important to understand whether a company has a PE in a particular country – so how is one created?  

Firstly, a permanent establishment can be a fixed place of business in the country where the company carries on business – so an office, factory, building site etc. Typically, this will not be a temporary structure and will be a physical location.  

Secondly and more importantly perhaps for global mobility teams, a permanent establishment can be created by an individual’s activities in a country. While definitions will vary from country to country, as a general rule, if an individual has the authority to do business on behalf of their employer and exercises that authority in the location they are temporarily working in, then they may create a permanent establishment for that employer in that location. 

Managing and Mitigating PE Risks ⚙️

If a permanent establishment is created, then the profits attributable to the activities carried out by the individual may be subject to tax in the country in question. In addition, the company may end up with immigration, payroll and social security obligations locally and may be required to register its presence locally. Failure to do so can lead to penalties and interest, as well as reputational risk.  

 While professional advice should be sought, some useful questions might be: 

• What is the nature of the employee’s role – is it business development and sales for example?
• Can the individual enter into a binding agreement on behalf of their employer? 
• Even if they cannot actually sign an agreement, would they be carrying out activities that could lead to a contract or agreement being concluded? 

In practice, the shorter the time the individual is working in a country, and the more junior they are, the harder it will be for tax authorities to argue that a permanent establishment is created.  Many say it has to exist for at least six months.  However, taxing authorities are increasingly sophisticated in their approaches to reviewing the tax profiles of companies and so it important for companies to have a handle on: 

• Who is working overseas, where, and for how long?
• The nature of the duties being performed – is the individual doing all the work to land business even if not actually signing the contract? 
• Are they in fact working for an entity that is already in that location – or can they? 
• A process to manage when things change – so, a change in length of time or a promotion or other change in the nature of duties?

Tax Residency Risks

What about creating Tax Residency for the Employer in the overseas country?  While we have considered the permanent establishment risk in some detail above, one other area is critical – that of tax residence. As we saw above, a permanent establishment exists where a company is resident in one country but creates a taxable presence in another. This is commonly recognised as a risk.  

Less common is the situation where the activities of the globally mobile employees lead to a change in the corporate tax residence of a company.  If this happens, typically the company will be deemed to have disposed of all assets in the home country (and be liable to tax on those disposals) and will then become taxable on all income and gains in the new country.  Most companies would not want that to happen without consciously having that as their strategy! How might this happen? 

Again this will be country specific. A company is usually resident where it is incorporated or, taking the UK as an example, where it is controlled and managed – where the decisions are made, through board meetings and executive meetings for example. If those decisions are made in a different location, the company may be tax resident in that location. 

While for larger companies it is perhaps unlikely to cause an issue, for a smaller company where the decisions are made by a much smaller number of people, the decision for them as a team to relocate may tip the balance. Clearly the shorter the time overseas the better. An idea by the leadership team to run the entire business from a beach in Barbados for a few months may have much greater implications than at first they might think! 

The Role of Mobility Teams 

Corporation tax is not something that a mobility team would usually be expected to advise on in detail - and indeed the nuances between countries mean that taking professional advice is essential. However, knowing at least a little about the potential risk is valuable – not least because in some cases it can be such a low risk that a decision might be made to try to make an overseas work request feasible, or on the flip side such a high risk that alternatives may need to be considered.