23/04/2019 Spain vs. Dell, June 2016, Supreme Court, Case No.

1475/2016

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Spain vs. Dell, June 2016, Supreme Court, Case No. 1475/2016 Related
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Posted on June 20, 2016 | By Courts of Spain
Norge vs. Dell
Norge. December
Dell Spain is part of a multinational group (Dell) that manufactures and sells computers. Dell Ireland, operates as
2011, HRD saknr
distributor for most of Europe. Dell Ireland has appointed related entities to operate as its commissionaires in several
2011-755
countries; Dell Spain and Dell France are part of this commissionaire network.
The Irish company
The Dell Group operates through a direct sales model. Purchase orders are placed on a web page or in a call centre. Dell Products was
taxable in Norway
Dell Spain operated as a full- edged distributor. After the restructuring, Dell Spain serves large customers of the group,
for years 2003-
through a commissionaire agreement with Dell Ireland. In many cases, large customers require specialized services and
2006. The issue
Dell Spain’s client support personnel serves them. Sales to private customers in Spain are conducted by Dell France,
was whether Dell
through a call centre and a web page.
Products had a
The Supreme Court concludes that the activities of Dell Spain constitutes a PE of Dell Ireland under both the “dependent permenent
agent” and “ xed place of business” clauses of the treaty. establishment in 
The Supreme Court concludes that the expression “acting on behalf of an enterprise” included in article 5.5 of the Spain- Norway, cf. Article
Ireland tax treaty does not necessarily require a direct representation between the principal and the commissionaire, but 5. 5 in the tax
rather refers to the ability of the commissionaire to bind the principal with the third party even when there is no legal treaty between
agreement between the latter two. Furthermore, the Supreme Court considers that Dell Spain cannot be deemed as an Ireland and
independent agent since it operated exclusively for Dell Ireland under control and instructions from the same. Norway from
2000. Dell
Regarding the “ xed place of business”, the Supreme Court interprets that having a place at the principal’s disposal also Products sold PC’s
includes the use of such premises through another entity which carries out the principal’s activity under its supervision. and equipment by
This Court also explained that considering a company as a PE is not only its capacity to conclude contracts that bind the a commission
company but also the functional and factual correlation between the agent and the company in the sense that the agent agreement in
has su cient authority to bind the company in its day to day business, following the instructions of the company and which the Irish
under its control. company was
Principal and the
Consequently, all of the revenue from Dell’s product sales in Spanish territory were taxable in Spain due to the above
Norwegian
functional correlation.
company Dell AS
The Supreme Court decision is in line with prior decisions by the Spanish Supreme Court with regard to post- was
restructuring schemes and commissionaire dealings involving complex business structures in Spain. commissioner.
Both the
Click here for translation
companies are
Page 1 / 16 Zoom 100% part of the Dell
group. Dell AS
sold to customers
who were […]

France vs. Zimmer

Ltd., March 2010,
Conseil D’Etat No.
304715, 308525
The French
company, Zimmer
SAS, distributed
products for
Zimmer Limited.
In 1995 the
company was
converted into a
commissionaire
(acting in its own
name but on
behalf of Zimmer
Ltd.). The French
tax authorities
argued that the
commissionaire
was taxable as a
permanent
establishment of

https://tpcases.com/spain-vs-dell-june-2016-supreme-court-case-no-14752016/ 1/4
23/04/2019 Spain vs. Dell, June 2016, Supreme Court, Case No. 1475/2016
the
principal, because
 the
commissionaire
could bind the
principal. The
Court ruled that
the
commissionaire
could not bind the
principal.
Therefore, the
French
commissionaire
could not be a
permanent
establishment of
the […]

France vs
Valueclick Ltd.
March 2018, CAA,
Case no
17PA01538
The issue in the
case before the
Administrative
Court of Appeal of
Paris was whether
an Irish company
had a PE in France
in a situation
where employees
of a French
company in the
same group
carried out
marketing,
representation,
management,
back o ce and
administrative
assistance
services on behalf
of the group. The
following facts we
re used to
substantiate the
presence of a
French PE: French
employees
negotiated the
Share:
terms of contracts
Like Share and were involved
in drafting […]
Category: Business Restructuring, Digital Economy, Permanent Establishments, Sales and Marketing Hubs, Tax
Avoidance Schemes | Tag: Commissioner, Dell, Dependent agent, Fixed place of business, Ireland, Permanent France vs. Google,
establishment July 2017,
Administrative
Court
In this case the
French tax
administration
argued that
Google had a
permenent
establishment in

https://tpcases.com/spain-vs-dell-june-2016-supreme-court-case-no-14752016/ 2/4
23/04/2019 Spain vs. Dell, June 2016, Supreme Court, Case No. 1475/2016
France because
the parent
company in the
US and its
subsidiary in
Ireland had been
selling a service –
online ads – to
customers in
France. The
administrative
court found that
Google France did
not have the
capability to carry
out the
advertising
activities on its
own. Google
Ireland Limited
therefore did not
have a permanent
establishment in
France. Share:

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