A case arises, as a consequence of the COVID-19 pandemic, in which an employee of an entity resident in the United Kingdom spent more than 183 days in Spain, carrying out his work remotely.
During this time, the consulting company did not cover any expenses related to accommodation in Spain.
As a result of the COVID-19 pandemic, an employee of an entity resident in the United Kingdom spent more than 183 days in Spain, working remotely. During this time, the consulting company did not cover any expenses related to accommodation in Spain, nor did it grant any additional remuneration to the employee for carrying out his work in Spain.
In this consultation, the question arises as to whether the fact that the employee remains in Spain in the circumstances described above means that he or she is considered to have a permanent establishment in 2020.
In the Administration’s opinion, this circumstance could arise in two different ways:
a) Having a fixed place of business in Spain where the applicant carries out all or part of its activity.
In the case in question, the place where the employee carries out the company’s activity is a home owned by the company, so it must be determined whether it is at the disposal of the company. In this regard, a report issued by the OECD on the Covid-19 Crisis sets out some non-binding guidelines that governments can adopt in relation to the exceptional situation that a taxpayer may experience as a result of the pandemic:
– the location in question must have a certain degree of permanence and be at the disposal of the enterprise in order to be considered as a fixed place of business.
– A home office could be considered as a PE of a company when it is used on a continuous basis to carry out an activity for that company and the company has obliged that person to use that location for the exercise of that activity.
– teleworking from home because of an extraordinary event or because of public health measures imposed or recommended by the government does not determine the existence of a PE of the company or the employer.
b) Having a dependent agent in the person of the employee.
The activities of a dependent agent, such as an employee, will constitute a PE of the enterprise if that employee regularly enters into contracts on behalf of the enterprise.
The agent’s activity in a jurisdiction should not be regarded as “usual” where he has exceptionally started working from his domicile in that jurisdiction as a public health measure imposed or recommended by at least one of the governments of the jurisdictions. Therefore, such a dependent agent should not be considered to constitute a PE, as long as he ceases to carry out such activities once the public health measures cease to apply.
It is concluded that:
– the fact that the employee carried out his work from home during the months that the public health measures lasted is not a sufficient level of permanence to consider the existence of a permanent establishment of the company in Spain.
– when the stay extends beyond this, it should be borne in mind that the existence of a permanent establishment is a question of proof, based on the specific facts and circumstances, which must be analyzed on a case-by-case basis.
For further information, please consult a Tax advisor.