What is permanent establishment risk?

Permanent establishment (PE) risk is the potential tax liability and legal obligation that arises for global companies operating in foreign jurisdictions.

A permanent establishment is a concept in international tax law that defines a fixed place of business through which an enterprise runs its business activities.

When a company's activities exceed a certain threshold in a foreign country, it may trigger a permanent establishment, subjecting the company to local taxation and regulatory compliance, such as corporate income tax, withholding tax, and other local taxes.

When this happens, the company may need to ensure compliance with local labor laws, regulatory requirements, and reporting obligations, potentially increasing administrative burdens and operational costs.

In the context of global workforces and remote work, the risk of inadvertently creating a permanent establishment is amplified due to the borderless nature of modern work arrangements.

How does remote work impact permanent establishment risk?

Remote work policies can increase permanent establishment risk as employees working from a foreign country could inadvertently create a fixed place of business for the company.

So, when sending employees abroad or hiring in a foreign country, HR must assess whether these activities create a permanent establishment, potentially altering the company’s tax responsibilities and requiring compliance with different employment regulations.

Risk factors for permanent establishment

The determination of a permanent establishment typically follows the guidelines set out in the tax treaties between countries. The following factors contribute to the permanent establishment risk:

• Physical presence: Maintaining a physical office, warehouse, factory, or other fixed places of business in a foreign jurisdiction increases the likelihood of creating a permanent establishment
• Duration of activities: Prolonged or continuous business activities conducted within a foreign country, even without a physical office, can trigger the establishment of a permanent establishment
• Remote workforce: Employing remote workers or representatives who conduct significant business activities on behalf of the company within a foreign jurisdiction can create a permanent establishment risk
• Sales activities: Conducting substantial sales, contracting, or negotiation activities in a foreign country may trigger permanent establishment concerns, especially if they are recurring and substantial
• Service provision: Providing services within a foreign country for an extended period or having ongoing service contracts may lead to permanent establishment risks

What are the potential legal or compliance issues associated with permanent establishment?

Legal and compliance issues associated with the permanent establishment can include:

• Liability for corporate income tax in a foreign jurisdiction
• Compliance with local employment laws, including payroll, social security contributions, and employee rights
• Obligations to register the business locally and maintain appropriate records
• Risks of double taxation if tax treaties do not provide relief

Learn more about why startups shouldn't ignore compliance in foreign countries.

How do tax treaties affect permanent establishment risk?

Tax treaties affect permanent establishment risk by defining the circumstances under which a business presence in one country creates tax obligations in another.

These agreements often include specific provisions that outline what constitutes a permanent establishment and may provide relief from double taxation. You must be well-versed in applicable tax treaties to navigate permanent establishment risks effectively.

Best practices to avoid permanent establishment risks

We’re sharing the top best practices for you to follow to make sure your permanent establishment risk is minimized.

Review and structure business operations strategically to minimize the risk of establishing a permanent establishment. Analyze activities conducted in foreign jurisdictions and assess whether they exceed the threshold for creating a permanent establishment.

Implement clear remote work policies and monitoring mechanisms for employees working across borders. Track and limit activities performed by remote workers in foreign countries to mitigate the risk of triggering a permanent establishment.

Seek professional advice from legal and tax experts specializing in international tax law. They can provide guidance on compliance with local regulations, tax treaties, and structuring business activities to minimize permanent establishment risks.

Review contracts, service agreements, and sales arrangements to ensure they do not inadvertently create a permanent establishment. Consider including clauses that mitigate permanent establishment risks.

Educate employees, especially those engaged in cross-border activities, about the implications of permanent establishment risk. Provide training on compliance with local laws and regulations to prevent unintended establishment triggers.

Maintain detailed records and documentation of remote work arrangements, including the nature and duration of activities performed in foreign countries. Having comprehensive documentation can support the defense against claims of a permanent establishment.

Regularly monitor and review business activities conducted in foreign jurisdictions. Implement tracking mechanisms to monitor the duration, frequency, and nature of activities to ensure they do not exceed thresholds triggering a permanent establishment.

Initiate discussions with tax authorities or seek advance rulings in jurisdictions where significant business activities are conducted. This proactive approach can provide clarity and guidance on permanent establishment concerns before they escalate.

Conduct periodic reviews and assessments of business operations in foreign jurisdictions. Evaluate changes in local laws, regulations, or business activities that could impact the risk of establishing a permanent establishment.

Stay agile in responding to changes in remote work dynamics, international regulations, or business strategies. Adapt business structures and operations to mitigate evolving permanent establishment risks.

Can the use of third-party employers or PEOs help avoid permanent establishment risk?

Using third-party employers (like Employer of Record) or Professional Employer Organizations (PEOs) can help avoid permanent establishment risk by outsourcing employment responsibilities to a local entity.

This arrangement can prevent the foreign company from having a direct presence or employees in the country, thereby reducing the risk of creating a permanent establishment.

Leverage technology to monitor permanent establishment risk

Technology can assist in monitoring permanent establishment risk by tracking employee locations and work patterns to identify potential risks. You can also use HR tech tools to manage and store documentation related to international assignments and tax treaty provisions.

Automating alerts for potential permanent establishment triggers can further assist in risk management.