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Germany - Austria Tax Treaty (as amended by 2010 protocol) — Orbitax Tax Hub

Note: This Treaty may be impacted by the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI). MLI impact on Tax Treaties is available with the Orbitax International Tax Research & Compliance Expert.

ARTICLE 5

Permanent Establishment

(1) For purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.

(2) The term "permanent establishment" includes especially:

  • (a) a place of management;
  • (b) a branch;
  • (c) an office;
  • (d) a factory;
  • (e) a workshop;
  • (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.

(3) A building site or installation project shall be a permanent establishment solely if it lasts for more than 12 months.

(4) Notwithstanding the preceding provisions of this Article, the following shall be deemed not to be a permanent establishment:

  • (a) facilities used solely for the purpose of storage, display or delivery of merchandise or goods belonging to the enterprise;
  • (b) stocks of merchandise or goods that belong to the enterprise and that are maintained solely for the purpose of storage, display or delivery;
  • (c) stocks of merchandise or goods that belong to the enterprise and that are maintained solely for the purpose of processing or refining by another enterprise;
  • (d) a fixed place of business that is maintained solely for the purpose of purchasing merchandise or goods, or of collecting information, for the enterprise;
  • (e) a fixed place of business that is maintained solely for the purpose of carrying on, for the enterprise, any other types of activity of a preparatory or auxiliary character;
  • (f) a fixed place of business that is maintained solely for the purpose of carrying on the types of activity enumerated in sub-paragraphs (a) through (e) of this paragraph, provided that the overall activity of that fixed place of business resulting from the combination is of a preparatory or auxiliary character.

(5) If a person other than the independent agent indicated in paragraph (6) of this Article acts on behalf of an enterprise and has in the Contracting State the authority to conclude contracts on behalf of the enterprise and habitually exercises that authority in the State, that enterprise, notwithstanding the provisions of paragraphs (1) and (2) of this Article, shall be deemed to have a permanent establishment in that State in respect of any activities that that person undertakes for the enterprise, unless those activities are limited to the types mentioned in paragraph (4) of this Article and, if exercised through a fixed place of business, would not make that fixed place of business a permanent establishment under the provisions of that paragraph.

(6) An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in the State through a broker, general commission agent or other independent agent, provided that such persons are acting in the ordinary course of their commercial activities.

(7) The fact that a company that is a resident of a Contracting State controls or is controlled by a company that is a resident of the other Contracting State or that carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.