What is permanent establishment?

Permanent establishment refers to a business's fixed presence in a foreign country that triggers local tax obligations. When a company conducts significant business or has a substantial physical presence in another country, it may be deemed to have a permanent establishment under that country’s tax laws. This can result in the business being subject to local corporate taxes on the income it generates within that jurisdiction.

Types of permanent establishment

There are different types of permanent establishments that can be defined by different criteria under tax laws in different jurisdictions. A few examples include:

• Fixed place of business: This type of permanent establishment includes a physical location such as an office, branch, factory, or workshop. The key factor is the presence of a fixed place where the business’ activities are carried out regularly.
• Agency: An agency permanent establishment occurs when a person or entity in a foreign country is authorized to act on behalf of the business; for example, signing contracts or making significant decisions. The agent's activities can create a taxable presence for the business if they are regularly conducted on its behalf.
• Construction or project based: This type includes construction sites, installation projects, or assembly activities that last for a certain period, typically more than six months. The duration and nature of these projects can create a permanent establishment if they meet specific thresholds set by local tax authorities.
• Virtual permanent establishments: With the rise of digital business models, virtual permanent establishments have become a consideration. This type can occur when a company has a significant digital presence in a foreign country, such as through a server, website, or other digital infrastructure, and generates substantial revenue from that presence.

Risk factors for permanent establishment

Many risk factors can trigger permanent establishment risk and create a taxable presence for a business in a foreign country. Understanding PE risk factors can help global businesses manage their tax obligations and avoid unexpected liabilities. Some common risk factors include:

1. Physical presence: The existence of a physical location such as an office, branch, or factory in the host country is a primary indicator of PE risk. This includes not only traditional offices but also home offices, places of management or any fixed place where business activities are regularly conducted.
2. Duration of business activity: The length of time a business operates in a foreign country can also trigger permanent establishment. Many tax authorities consider business activities conducted over a specific period of time, such as six months or more, as establishing a taxable presence.
3. Sales activities: Engaging in significant sales activities within a host country can lead to PE risk. This includes having sales representatives who regularly solicit and negotiate contracts on behalf of the business, which can create a taxable presence.
4. Providing services: Offering services in a foreign country, especially if they’re provided over an extended period of time, can also trigger permanent establishment. This includes consulting, technical support, and other service-based activities.
5. Having a remote workforce: Hiring or establishing remote workers in a foreign country can increase the risk of triggering a taxable presence (more on this in the next section).

Do remote workers increase your permanent establishment risk?

Yes, remote workers can increase your permanent establishment risk.

As businesses expand globally and build multinational teams, remote workers’ activities can create a taxable presence in their host countries. If remote workers engage in significant business activities, such as managing operations or negotiating contracts, this can trigger PE risk.

Businesses should carefully manage and document their global teams’ activities to mitigate their risk and make sure they comply with local tax laws and other relevant regulations.

Legal and compliance issues related to permanent establishment

Establishing a permanent establishment in a foreign country can bring legal and compliance challenges that businesses need to navigate to avoid penalties and keep their operations running smoothly:

• Corporate income tax: Once a business is considered to have a permanent establishment, it becomes subject to corporate tax on the income attributed to the PE. This can lead to additional tax liabilities—and it’s up to each business to make sure it’s complying with all the relevant and applicable tax laws in the host country where it operates.
• Local employment laws: Businesses with a permanent establishment must comply with the host country's employment laws and labor regulations, which often include requirements for avoiding worker misclassification, providing mandatory employee employee benefits, paying social security contributions, and more. Failure to comply can result in legal issues, financial penalties, reputational damage, and loss of good standing with local authorities.
• Local business registration: Depending on the jurisdiction, businesses may be required to register with local authorities, which can also require them to meet specific regulatory requirements and maintain proper documentation to operate legally within the host country. Proper registration helps businesses establish a legitimate presence and avoid potential legal complications.
• Double taxation: Double taxation is a common concern for businesses operating in multiple jurisdictions. This occurs when the same income is taxed by the business’ home country and the host country. To address this issue, businesses can utilize tax treaties that provide relief from double taxation through tax credits or exemptions, making sure they don’t have to pay taxes on the same income twice.

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How to avoid permanent establishment risk

To minimize the risk of permanent establishment, businesses can adopt strategic measures that help them better align with local tax laws and regulations. Below are some key strategies to help avoid triggering permanent establishment in a foreign country.

Structure overseas business operations strategically

When entering a new market, structure business operations in a way that minimizes the risk of creating a permanent establishment. Some tips:

• Carefully plan when opening or establishing a physical presence in a new jurisdiction—and before doing so, carefully consider whether your business really needs it to support your operations there.
• Consider the roles and responsibilities of your local representatives in new markets. Only have them perform job duties that are strictly necessary, and limit other activities that could further establish your business.
• Limit the duration of your business activities, if possible and if you aren’t planning to stay in a new market long-term.

Work with local legal and tax experts

Engaging with local legal and tax experts can also help navigate the complexities of global expansion. Sometimes, only a professional can provide guidance on global payroll, compliance with local tax laws, and strategies to mitigate tax risk, and by leveraging their expertise, your business can be sure that your operations—both in your home country and abroad—are aligned with legal requirements.

Regularly review documents, business practices, and local laws

Stay agile to changes in local laws and regulations—both to maintain compliance and to avoid permanent establishment risk. Regularly reviewing business documents and practices ensures that they are up-to-date and compliant with current laws and creates a proactive approach that helps mitigate your risk.

Create and implement clear remote work policies

In the global employment landscape, businesses need clear remote work policies. Outline your expectations and guidelines for remote workers, and have your legal and tax professionals review your policy to make sure remote workers’ activities don’t inadvertently create a permanent establishment. Clear policies help manage the global workforce effectively and reduce the risk of non-compliance.

Maintain detailed records of remote work arrangements

Keeping detailed records of remote work arrangements will help you prepare for potential audits and comply with global regulations. Documenting the activities, locations, and durations of remote work helps demonstrate that your business is not operating in a manner that would establish a taxable presence, transparency that’s key to mitigating risk when you have a global workforce.

Educate your workforce

Educate your employees about the implications of their activities on permanent establishment risk, so they understand the importance of compliance and the potential consequences of their actions and can help prevent inadvertent establishment of a taxable presence. Provide regular and ongoing training and communication.

Use an Employer of Record (EOR)

Partnering with an Employer of Record (EOR) can help manage the complexities of managing a workforce in a foreign country without establishing a legal entity (and risking triggering permanent establishment).

Similar to a PEO in the US, EORs handle time-consuming administrative functions like payroll, tax filings, benefits, and compliance with local labor laws, allowing your company to focus on its core operations.

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Frequently asked questions about permanent establishment

What causes permanent establishment?

Permanent establishment is caused by a business having a significant presence in a foreign country, such as a physical location, a dependent agent conducting business on behalf of the company, or extensive and prolonged business activities. Factors like duration of activities, the nature of the business, and local tax laws can trigger a permanent establishment.

Is a satellite or franchise a permanent establishment of its parent company?

A satellite office or franchise can be considered a permanent establishment if it has a significant degree of control by the parent company. If the satellite or franchise meets the criteria set by local tax authorities, such as being a foreign subsidiary or dependent agent, it may create a taxable presence for the parent company.

How are permanent establishments taxed?

Permanent establishments are taxed based on the income attributed to their activities within the host country. Local tax authorities determine the tax liabilities according to international tax treaties and local tax laws. Businesses must comply with these regulations to calculate and pay taxes appropriately on the income generated by the permanent establishment.

Can individual workers have permanent establishment?

Individual workers can create a permanent establishment if their activities in a foreign country are significant enough to meet the local criteria. This is particularly relevant for remote workers or those who perform substantial business activities from a home office or other locations within the host country. 

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