On December 18th, 2024, the German Federal Fiscal Court dealt with the taxation of permanent establishments in four cases. In the decisions I R 47/21 und I R 39/21, the court had to decide if and under what circumstances German enterprises could constitute a “fixed place of business" in Switzerland and in the United Kingdom allowing them to exclude profits from German taxation. In its decisions I R 45/22 and I R 49/23, the court decided on the applicability of German anti-abuse provisions to the allocation of profits to permanent establishments. In its judgment on the interpretation of the definition of the term “permanent establishment", the court drew conclusions that deviate in part from the Commentary on Art 5 of the OECD Model Tax Convention. The recent decisions of the German Federal Fiscal Court may have relevance for cross-border activities of Austrian enterprises as well. Stefan Bendlinger comments on the court’s decisions on the tax treaty concept of permanent establishments. An analysis of the court’s decisions on the allocation of profits to permanent establishments is reserved for another article that will be published in one of the forthcoming editions of the Tax and Business Review.
