Tax Treaty Case Law around the Globe 2014
1. Aufl. 2015
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S. 221Chapter 22 Austria: The Meaning of the Term "Employer" under Article 15(2)
Kasper Dziurd
22.1. Introduction
Article 15(1) of the OECD Model establishes the general rule as to the taxation of income from employment, i.e. the place-of-work principle.Such income is primarily taxable in the contracting state in which the employment is exercised. However, article 15(2), the 183-day rule, provides an exception to the place-of-work principle. Remuneration derived in respect of an employment exercised in the other contracting state (the source state) is taxable only in the employee's residence state if:
the employee is present in the source state for a period or periods not exceeding in the aggregate 183 days in a given 12-month period;
the remuneration is paid by, or on behalf of, an employer who is not a resident of the source state; and
the remuneration is not borne by a permanent establishment (PE) that the employer has in the source state.
If all these conditions are fulfilled, the 183-day rule applies and prevents the remuneration from being taxed in the source state, even though the work is exercised in that state.
S. 222Since article 15(2)(b) and (c) uses the undefined term "employer", it is nec...