If approved, the bill would eliminate the term “essential activity” from the permanent establishment definition. With this modification, a lower threshold would apply for triggering a permanent establishment.
Costa Rica’s Congress will discuss a bill that would amend the definition of permanent establishment (PE) in Article 2 of the Income Tax Law. To become law, Congress needs to approve the bill in two debates.
Current law defines a PE as any fixed business site or place in which the essential activity of the domiciled person is totally or partially performed. However, the European Union (EU) determined, among other things, that the incorporation of the term “essential activity” in the definition sets a higher threshold for triggering a PE than the internationally accepted principles (i.e., OECD Model Convention). As a result, the EU included Costa Rica on the so-called “gray list” of non-cooperative jurisdictions for tax purpose.
Because of its inclusion on the “gray list,” Costa Rica’s Executive Branch proposed the bill to modify the current PE definition. If approved, the bill would amend the PE definition by eliminating the term “essential activity.” Therefore, the bill would define a PE as any fixed business site or place in which the domiciled person’s activity is totally or partially performed.
For additional information with respect to this Alert, please contact the following:
Ernst & Young, S.A., San José, Costa Rica
Ernst & Young LLP (United States), Latin American Business Center, New York
Ernst & Young Abogados, Latin America Business Center, Madrid
Ernst & Young LLP (United Kingdom), Latin American Business Center, London
Ernst & Young Tax Co., Latin American Business Center, Japan & Asia Pacific