The absence of a permanent establishment definition in Maltese legislation : an analysis

Abstract

The notion of permanent establishment is one of the most important issues in treaty-based international tax law. In fact, nearly all double taxation treaties use the permanent establishment threshold to establish taxing jurisdiction over a non-resident’s business activities. However, the permanent establishment concept is also decisive in the domestic laws of various countries. While references to the term ‘permanent establishment’ can be identified in Maltese domestic tax legislation, the Income Tax Acts fail to provide a working definition of the term. The aim of this thesis is to consider the implications of having a domestic permanent establishment definition and what an adequate definition would be. Possible criteria to look into when deciding whether or not a domestic permanent establishment definition should be introduced are laid down in this thesis. The first two Chapters of this thesis focus on the relevance of the permanent establishment concept and the issues arising in the absence of a domestic definition of the term ‘permanent establishment’. In addition, Malta’s jurisdiction to tax, particularly with respect to non-resident persons is delved into since it is necessary to consider Malta’s current threshold in respect of the taxation of non-residents, before deciding whether the permanent establishment threshold should be introduced. Chapter Three of this thesis focuses on the current OECD Model definition of the term ‘permanent establishment’ and the Commentary supplementing it, on the basis that the permanent establishment definition in the majority of Malta’s double taxation treaties are modelled on said definition and that in the absence of a definition, the said definition is relied on. Recent proposed changes to the said definition and Commentary are also considered. Insight on the way in which various jurisdictions have incorporated the notion of permanent establishment in their domestic tax laws and the way in which they worded their domestic definitions of the term ‘permanent establishment’ are the focus of Chapter Four of this thesis.