Tax Treaty Case Law around the Globe 2016

S. 111Chapter 9 The Spanish Saga on PEs: The Dell Judgment on “Commissionaires” and “Dependent Subsidiaries”

Adolfo Martín Jiménez

9.1. Introduction

The Spanish aggressive position on the concept of permanent establishment (PE) was explained in our contribution to this collection last year. In that book, the decision by the Central Administrative Tribunal (TEAC) on the Dell case was commented. Dell Spain represents the opposite extreme to Dell Norway. Whereas the Supreme Court of Norway concluded that there was no dependent agent PE, in Dell Spain, the TEAC decided that the same group and structure gave rise to a PE. This contribution focuses on the judgment in the same case by the Audiencia Nacional (AN), a central court of justice in Madrid and, unlike the TEAC, fully independent from the tax administration. The judgment by the AN confirms in some aspects the ruling by the TEAC, but deserves some comments and has some interesting features with respect to other PE cases in Spain. Even if the case is not in line with the orthodox OECD doctrine on the PE concept (before or after BEPs), it has corrected to a certain extent the TEAC decision and is really interesting to comment in a post BEPs ...