The Austrian Supreme Administrative Court rarely deals with permanent establishment issues. In its decision of June 22nd, 2022, Ro 2020/13/0004-7 , however, the court had to decide whether a Hungarian resident individual providing translation services to Hungarian individuals and assisting them in dealings with Austrian authorities had sufficient power of disposal over premises owned by another enterprise resident in Austria in order to trigger Austrian tax liability by constituting a permanent establishment or a fixed base under the tax treaty between Austria and Hungary. According to the judgement of the Supreme Administrative Court the shared use of another taxpayer’s office facilities is not sufficient to constitute a fixed place of business according to Art 5 para 1 of the tax treaty (identical to Art 5 para 1 OECD Model Convention). Applying the Supreme Administrative Court’s decision to the controversial question whether an individual’s home office could constitute a fixed place of business of the employer it seems clear that there is no room to consider a home office to be at the disposal of an enterprise. Stefan Bendlinger and Valentin Bendlinger analyze the court’s decision in the light of the OECD Commentary, administrative practice, as well as settled jurisdiction of the Austrian Supreme Administrative Court and the German Federal Fiscal Court and discuss their impact on the current discussion whether working at home could constitute a permanent establishment of the employer.
