Tax Treaty Case Law around the Globe 2015

S. 121Spain: The Spanish Position on the Concept of PE: “Complex Operative Settlements” and “Industrial Dependent Agents” as PEs

Adolfo Martín Jiménez

I. S. 122Introduction

This chapter is mainly about the judgment by the Spanish Supreme Court in the Borax case (judgment of 18 June 2014, rec. 1933/2011), which basically confirms with some nuances the previous decisions by lower Courts. But it concerns more than that: it will also try to analyse the Borax decision in the context of the more general position of the Spanish Administration and Courts, the (in)famous Roche and Dell cases, and the recent Revised Draft of the OECD on Action 7 of the BEPS Action Plan. Since court decisions, and Borax is of course no exception, have their origin in adjustments made by tax administrations, the position of the Spanish Tax Administration is explained first. The first instance judgment by the “Audiencia Nacional” in Borax confirmed the position held by the Tax Administration. Subsequently, Roche and Dell were released, after which the Supreme Court confirmed the Borax decision by the AN and added some relevant nuances to previous case law. All those decisions are explained in chronological order before some c...