Tax Treaty Case Law around the Globe 2013

S. 81 Spain: Permanent establishment – The concept of “fixed place of business” and the concept of “dependent agent”

María Teresa Soler Roch

1. S. 83 Introduction

The content of this contribution deals with the two following court decisions:

First, the Spanish Supreme Court gave its decision on 12 January 2012 in the Roche case (appeal number 1626/2008), stating that the Spanish subsidiary Roche Vitaminas SA “RV”, which performed manufacturing and promotional activities at the request of the Swiss company Roche Vitamins Europe LTD “RVE”, was deemed to be a permanent establishment (PE) of RVE under Article 5 of the Spain-Switzerland Income and Capital Tax Treaty (1966).

Second, the Spanish Central Administrative Court gave its decision on 15 March 2012 in the Dell case (claim number 00/2107/2007), stating that a Spanish subsidiary “X SA”, which performed sale activities in respect of products commercialized in Europe by “XL” (another subsidiary within the same group of companies resident in Ireland), was deemed to be a permanent establishment (PE) of XL under Article 5 of the Ireland-Spain Income and Capital Tax Treaty (1994).

Both cases deal with business restructuring and confirm a Spanish judi...