The arrival of the new BEPS PE clause in actual tax treaties via the MLI: impact, risks and need for further regulatory changes (particular focus on Spain)

Abstract

The article aims to analyze the potential impact of the new concept of permanent establishment that has emerged from the BEPS project as it becomes incorporated into double taxation treaties, using Spain as an illustrative example. The article examines the wording and scope of this new clause, highlighting its most immediate precedents: the Commentaries on previous versions of the OECD Model Tax Convention and certain national doctrines and jurisprudential lines (e.g., the Spanish PE approach). It then seeks to anticipate the effects that the entry into force of this clause at a global level will have in terms of the number of affected treaties, the expected reaction of tax administrations and courts with respect to treaties not yet affected, the potential coexistence between this new clause and domestic legislation, and, finally, the revenue this new clause might (or might not) generate. The article also seeks to anticipate the risks arising from the implementation of this new rule and the urgent need for legislative amendments to mitigate them.