Dysponowanie jako przesłanka powstania stałego zakładu podatkowego w przypadku pracy home office – perspektywa Niemiec i Austrii
Having premises at one’s disposal as a condition for setting permanent establishment in the case of home office: the Germany and Austria perspectives

Summary/Abstract: The established line of judicial decisions of the Supreme Administrative Court indicates that a necessary premise for setting permanent establishment is that the taxpayer must have a fixed place of business in Poland at the disposal, the so-called “premises-at-one’sdisposal” condition. This view is based on the Commentary on the OECD Model Convention. However, the content of the premise itself and its normative nature are not as obvious as the Supreme Administrative Court’s decisions suggest, as evidenced by individual tax rulings that contradict the Supreme Administrative Court’s judgments. It is worth noting that the Commentary was written at a time when home office work (more broadly, remote work) did not yet have significant socio-economic importance. Currently, however, more than 10% of employees in Poland work in this formula. The ambiguity of the condition of having premises at one’s disposal was confirmed by a doctrinal analysis of court rulings, tax authority documents and German and Austrian legal commentary, which was the subject of the article. This analysis revealed a wide spectrum of interpretations of the premise of having a place at one’s disposal, far from reaching a common consensus. The German Federal Fiscal Court has extensively analysed said condition in its judgments and, in its most recent decisions, has moved away from highlighting this premise, placing emphasis on the criterion of the taxpayer’s roots in combination with the principle of deriving benefits from activities carried out in a given place. In turn, in 2024, the German Federal Ministry of Finance took the position that home office should not lead to setting a permanent establishment, even if the conditions set out in the Commentary were met. In contrast, the Austrian tax authorities have ruled that three days a week of working from home (with two days working at the employer’s office) may result in the creation of a permanent establishment in Austria. Such a wide range of interpretations and applications of the “premises-at-the-disposal” condition should prompt a relevant debate in Poland in the context of home office work.

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