Updates to OECD Model Tax Convention for Permanent Establishment for Remote Working

Although cross-border teleworking already existed before the Covid-19 pandemic, its scope and impact grew considerably during and after the pandemic, and this upward trend is still ongoing.

On 19 November 2025, the OECD released significant updates to the Commentary on the Model Tax Convention (the “Commentary 2025”).

A key focus of these updates is the treatment of Permanent Establishments (PEs) in situations where employees work remotely from a home office or another location that has no formal connection to their employer. The revised Commentary provides important clarifications to Article 5 of the Convention, particularly in the context of modern, flexible working arrangements.

The Commentary on Article 5 (Permanent Establishment): Use of a Home Office

The 2025 Update introduces a new analytical framework for assessing when remote or home-working arrangements may create a Permanent Establishment (PE). The OECD’s updated guidance includes a time-based indicator and a commercial‑reason test to determine whether an employee’s home or other location abroad constitutes a fixed place of business.

1. Time-based indicator: The guidance establishes that a home or relevant place will not be considered a fixed place of business if the individual works there for less than 50 per cent of their working time, assessed over any 12-month period.If an individual meets the time indicator i.e. works from home for 50% or more of their working time, wider facts and circumstances will be considered, with emphasis on whether the business has a commercial reason for activities in the employee’s home jurisdiction.

2. Commercial reason test: A commercial reason will be present where the individual directly engages with customers, suppliers, associated enterprises or other persons on behalf of the enterprise; and that engagement is facilitated by the individual being located in that State.However, the mere presence of customers or suppliers does not automatically establish a commercial reason.  If there is no genuine commercial reason for working from that location, it generally will not be considered a place of business for the company, unless other specific facts suggest otherwise.

The updated Commentary contains five illustrative examples reflecting common fact patterns:

• Example A – Luca, an IT consultant based in Ireland, spends three months working from a rented apartment in Lisbon. Because the accommodation is used only on a temporary, short‑term basis and lacks continuity, it is not regarded as a fixed place of business for his employer.
• Example B – Emma, who normally works in Dublin, relocates temporarily to Barcelona and carries out around 30% of her duties from her home there. While her Spanish home is a “fixed” location, she works there for less than half of her time. As a result, it is not considered a place of business and does not create a PE for the company.
• Example C – Jonas moves to Munich and performs approximately 80% of his work from his home office. He also routinely meets clients located in Germany. The home is “fixed” and, because there is a commercial reason (serving local clients), it is considered a place of business and a permanent establishment for the company.
• Example D – Sofia is based in Porto and spends about 60% of her time working from her home office. However, she provides services to clients across several countries and only occasionally visits a local client in Portugal. Despite the high level of home‑working, there is no commercial reason for her to be in Portugal, so her home office does not constitute a place of business or give rise to a PE.
• Example E – Aisha works almost entirely from her home in Singapore, delivering virtual support and services to customers located across Asia‑Pacific time zones. Her presence enables the company to serve those markets more effectively. In this case, the home office is fixed and commercially driven, and therefore is likely to be considered a place of business that results in a PE.

Our View

With remote working becoming an increasingly common request, whether from an employee’s home or another overseas location, businesses have faced ongoing uncertainty around potential tax implications and how best to structure their remote work policies.

Overall, the updated guidance offers more clarity and flexibility for organisations managing cross‑border remote working arrangements.  Employers are advised to monitor the frequency with which employees conduct work outside the jurisdiction of their employment contracts, carefully assess remote work policies for potential permanent establishment risks, and maintain comprehensive records of all related processes and procedures.

If you need assistance reviewing your remote working policy, or have any queries in relation to the updated commentary, please feel free to contact us.