O conceito de estabelecimento estável

: o entrelaçar da realidade do corpus e a utopia do animus na tributação digital

Abstract

This thesis focuses on the concept of permanent establishment as a central element of the distribution of international tax power between States. The taxation paradigm has changed substantially with the digital economy and the emergence of new forms of service provision and supply of goods. Even so, the genesis of the concept, which is increasingly elastic, is closely connected to the definition of residence/head office as an aggregating focus of corporate taxation. Thus, the general principle remains the same: a company can only be taxed on its income in its State of residence unless it has a permanent establishment in another State. The permanent establishment is the dynamo which can trigger the possible taxation of another State. In response to this reality, which is closely linked to the digital economy and the progressive valuation of intangible assets, the OECD has adopted a set of measures to ensure the correspondence between the place where income is generated and its tax liability. The BEPS (Base Erosion and Profit Shifting) Plan was created to address gaps and frictions arising from international tax interaction. As the OECD itself assumes, "globalisation has an impact on the corporate income tax system"2, manifesting itself in a loss for States, taxpayers and businesses. Likewise, pillar 1 of the OECD, on digital taxation, which partially answers, as we shall see, the need to update the taxation of intangible assets, as well as the failed draft Directive in this regard, and BEPS actions 1 and 7. We will then critically assess each of the mentioned realities, and we will dare to suggest a new test for the verification of a permanent establishment that would articulate physical presence (corpus) and the nonphysical activities developed in the market country (animus).

Date of Award	28 Jun 2023
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	João Sérgio Feio Antunes Ribeiro (Supervisor)