Tax Treaty Case Law around the Globe 2014
1. Aufl. 2015
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S. 293Chapter 29 Portugal: PE and Non-Discrimination Regarding Domestic Relief for Double Economic Taxation
João Félix Pinto Nogueira
29.1. Introduction
Permanent establishments (PEs) and companies are similar in respect of their legal features but they are not entirely similar or identical. Nonetheless, and for tax purposes, these two constructos are often treated alike, in particular when the rationale behind the tax treatment holds true for both PEs and subsidiaries (companies).
Provisions under domestic law that bind the legislator to grant the same treatment for PEs and companies are generally not found. Certainly, general principles such as equality (or its negative side of prohibition of non-discrimination) or legal certainty may lead to cases where a certain discriminatory treatment is not admissible; however, it is difficult to find any specific PE non-discrimination provision.
Under EU law, the situation is quite different. From Avoir Fiscal, it is settled case law that an EU citizen may exercise the freedom of establishment in another Member State using a PE or a company and that this option should not be conditioned by tax reasons (in all cases where PEs and companies are consider...