On the 3rd of April 2020, the Organisation for Economic Co-operation and Development (OECD) issued a document entitled “OECD Secretariat Analysis of Tax Treaties and the Impact of the COVID-19 Crisis”. The document addresses various tax issues related to the ongoing COVID-19 crisis. Amongst other things, it discusses (i) whether the dislocation of employees to other countries may lead to the creation of permanent establishments in those other countries, (ii) whether the place of the effective management of a company will change if its directors are dislocated in other countries, and (iii) whether individuals who are forced to temporary reside in other countries will become tax residents of those other countries. These topics will be examined in more detail below.
Dislocation of employees
According to the OECD, the temporary and exceptional change of the workplace of employees caused by the COVID-19 crisis is not sufficient to create a permanent establishment for their employer under tax treaties. The OECD provided three arguments to support its position. First, such a dislocation lacks a sufficient degree of permanency or continuity. Second, the employer does not have access or control over the home office of the employee. Third, the employer still provides an office which in normal circumstances will be available to its employees.
However, the OECD noted that the dislocation of employees as a result of the COVID-19 crisis may trigger tax requirements under domestic laws (including state and provincial legislation). That is why the OECD urged governmental tax authorities to provide guidance on the domestic tax laws in order to “eliminate unduly burdensome compliance requirements for taxpayers in the context of the COVID-19 crisis.”
The OECD acknowledged the progress achieved by Ireland in relation to clarifying its corporate tax laws in the context of the COVID-19 crisis. More specifically, the OECD referred to a guidance issued by Ireland’s tax authority which states that, for corporate income tax purposes, the presence of an individual in Ireland or in another jurisdiction shall be disregarded if such presence is “shown to result from travel restrictions related to COVID-19.” However, the individual concerned needs to keep evidence indicating that his/her presence in Ireland or in another jurisdiction resulted from COVID-19 related travel restrictions.
Place of effective management
It is widely known that the place of the effective management of a company is an important criterion for defining the tax residence of the company. Therefore, many companies are concerned that the dislocation of their directors as a result of COVID-19 related measures may make their companies taxable in the jurisdictions where the directors reside.
The OECD stated that it is unlikely that the COVID-19 situation will lead to any changes of corporate residence status under tax treaties. This is because a temporary change in location of the chief executive officers and other management staff is regarded as an “extraordinary and temporary situation” caused by the COVID-19 crisis.
Tax residence of individuals
Due to the travel restrictions related to COVID-19, many individuals had to remain in countries different than the countries of their regular tax residence. Logically, some of those individuals are concerned with regard to their tax residence status.
The OECD noted that several countries have issued guidance regarding the impact of the travel restrictions on the tax residency of individuals. For example, the UK has released a document clarifying whether days spent in the UK due to exceptional circumstances can be disregarded for the purpose of determining residency. Australia also issued similar guidance which states that, if an individual remains in Australia for some weeks or months because of COVID-19 related measures, he/she will not become an Australian resident for tax purposes. Ireland’s guidance regards as “force majeure” the circumstances where, due to extraordinary natural occurrences, an individual is unable to leave Ireland on his/her intended day of departure.