Fast etableringsställe : En skatteplanerares dröm?

This master’s thesis will examine the concept of “fixed establishment” in VAT-law. The concept can be found in the new EC-directive on the common system of value added tax, however it has existed for thirty years in previous directives. Despite this, the legislator has never provided a proper definition of the concept. Its meaning has therefore evolved through the case-law of the ECJ. The Court has put forward a number of criteria which are all to be met if a fixed establishment is to be at hand. First of all the stablishment must have the human and technical resources necessary to provide the service. Furthermore the establishment need to be fully dependent on the parent company. This criterion may be fulfilled even though the establishment is a separate legal person. Finally the Court has held that the result of a transaction being taxed in the country where the fixed establishment is located must lead to a rational taxation result. This rational result is to be examined on a case-by-case basis. It seems clear that a scheme where a fixed establishment is being used with the sole purpose of avoiding VAT would not meet this requirement. The concept of fixed establishment is not to be confused with the concept of permanent establishment existing in income taxation. This latter concept is laid down by Article 5 of the OECD Convention. The two concepts share a common heart, however the ECJ has used the concept of fixed establishment to accommodate the needs of Community law in the field of VAT. Furthermore, this master’s thesis will examine what tax planning opportunities fixed establishments may provide. Swedish companies, primarily exempt taxable persons such as banks and insurance companies, may be tempted to establish fixed establishments in states with a low VAT-rate on professional services, i.e. services provided by consultants, engineers, lawyers and accountants etc. Exempt taxable persons are not entitled to deduct input VAT. By having the fixed establishment purchase the service in question abroad at a low rate of VAT and then forward the service to the main office, savings on VAT cost can be made. A VAT-saving scheme, based on reversed charge of VAT, may involve a Swedish company purchasing a service via a fixed establishment in Luxembourg at a VAT-rate of 15%. When the establishment subsequently forwards the service to the main office in Sweden no taxation will be made since the ECJ has held that transactions within the same legal entity are not taxable. The difference in VAT cost is ten percentage points which is what the Swedish head office saves by having the fixed establishment purchase the service rather than purchasing it directly from the provider. Similarly, a fixed establishment may be organised in Switzerland, outside the Community, where the VAT-rate is even lower. There are obstacles to these kinds of VAT-saving schemes, and these will be more thoroughly examined