Source Diligens
Unofficial translation in English
Source Court case V3458/19
Unofficial translation in English
Editorial comments
Key paragraphs of the decision ….
”Finally, it concludes a lease contract with a Valencian company under which it leases space on the contractor’s premises, duly equipped, to store part of the raw material that cannot be received by the manufacturing company as the by-product of the processing process, and under the same contract the storage company provides the consultant with the necessary logistics services for the receipt or dispatch of the stored goods.’
In accordance with all of the above, and taking into account that the Norwegian entity owns a right of use of all or part of a warehouse – fixed and determined part – located in the territory where the tax is applied and that it also has the Human resources necessary for its effective use, subcontracted to the lessor of the warehouse itself, it can be concluded that the Norwegian entity has a permanent establishment in the territory of application of the tax.”
It is not clear from the text whether the Norwegian entity has concluded a ‘’rental agreement’’ with a Spanish entity or whether it concluded a type of general logistics service contract with a Spanish supplier, who also managed the logistics services. What I read is that if the non-resident entity has access to a fixed and determined part of a warehouse, it may a create a FE. This may also be closely connected to art 47 of the Directive which determines that the place of supply of services connected with immovable property are taxable where the immovable property is located. This is understood as ‘’passive warehousing’’ whereby warehousing is the main purpose of the transaction compared to ‘’active warehousing’’ whereby the logistics services as packing, unpacking, management of inventory , handling service within a warehouse , loading, offloading etc. is the main objective.
