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Permanent establishment · Remote work

Remote Workers in Spain and Permanent Establishment: the 2025 OECD Rules

In November 2025 the OECD rewrote its guidance on when a home office abroad becomes a taxable presence of the employer. For foreign companies with people working from Spain, it replaces years of uncertainty with two tests and five worked examples.

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The question every foreign employer asks

A software company in Austin hires an engineer who lives in Valencia. A London fund lets a portfolio manager relocate to Marbella. A Dutch scale-up allows its head of sales to move to Barcelona because her partner found a job there. In each case the company has no office, no branch and no intention of doing business in Spain. And in each case its finance director eventually asks the same thing: have we just created a permanent establishment?

The stakes are real. A permanent establishment means Spanish tax on the profit attributable to it, a Spanish tax registration, separate accounts, returns, and exposure to penalties for the years in which none of that was done. For most of the last decade the honest answer was "probably not, but nobody can be sure". The 2017 version of the OECD Commentary dealt with the home office in two short paragraphs built around the idea of a place being "at the disposal" of the enterprise, which tax authorities read in very different ways.

On 18 November 2025 the OECD Council adopted an update to the Model Tax Convention that replaces that guidance with twenty-one new paragraphs in the Commentary on Article 5, numbered 44.1 to 44.21, under the heading of cross-border working from a home or other relevant place. This guide explains what they say and how they are likely to work for people in Spain.

What the new paragraphs cover

The guidance is about an individual who, typically for personal reasons, does all or part of their work for an enterprise of one country from a place in another country that is neither the enterprise's own premises nor those of a customer, supplier or group company. The Commentary gives the home as the obvious example and adds second homes, holiday rentals and the home of a friend or relative (paragraph 44.1). It calls all of these "other relevant places". A co-working desk rented by the employer is a different matter and falls under the ordinary rules.

The Commentary recognises that a home is unlike an office: colleagues cannot walk in, and it is under the control of the individual, not of the company (44.2). That is why it sets out considerations specific to this situation, while insisting that the outcome always depends on the facts of the period in question (44.3).

The structure: four questions in order

Read together, the new paragraphs produce a sequence of questions. A permanent establishment under Article 5(1) requires a "yes" to each of the first three, and a "no" to the fourth.

  1. Is the place fixed? There must be a degree of permanence, judged under the general rules (44.4). A three-month stay in a rented flat after a holiday is not enough. Working from the same home throughout a twelve-month period is.
  2. Is it a place of business of the enterprise? This is the heart of the update, and it turns on two tests: the share of working time spent there, and whether there is a commercial reason for the person to be in that country (44.6 to 44.19).
  3. Is the business carried on through it? Normally yes, if an employee does their job there.
  4. Are the activities merely preparatory or auxiliary? If so, Article 5(4) removes the permanent establishment even where the first three answers are yes (44.5).

Test one: less than 50 % of working time

The first test is close to a safe harbour. A home or other relevant place would generally not be a place of business of the enterprise if the individual works from it for less than 50 % of their total working time for that enterprise, measured over any twelve-month period that begins or ends in the fiscal year concerned (44.8). The Commentary adds that exceptions are not expected in most situations.

What counts is what the person actually does. Contracts and remote-work policies help as evidence, but only to the extent that they match the real pattern (44.9).

For a hybrid employee who lives in Spain and commutes or travels to the employer's country for more than half of their working days, this test alone will usually settle the matter. For a fully remote employee in Spain, it will not: at 50 % or more, the answer depends on the facts and circumstances (44.10), and the second test comes into play. We look at how to count in the 50 % working-time test.

Test two: is there a commercial reason?

The Commentary describes the commercial reason as a prominent consideration (44.11). It exists where the individual's physical presence in that country itself helps the enterprise carry on its business, for instance because there are people or resources there that the business needs to reach.

The clearest case is direct engagement with customers, suppliers, group companies or others on the company's behalf, made easier by being in the country (44.12). The Commentary lists further indicators (44.17): meeting customers, developing a new customer base, finding and managing suppliers, real-time service to customers in other time zones, access to relevant know-how such as a university research group, collaboration with other businesses, on-site services for local customers, and interaction with the company's own staff or group companies there.

Equally important is what does not amount to a commercial reason:

  • Allowing someone to work from home in another country solely to hire or keep that person (44.15).
  • Allowing it solely to save on office costs (44.16).
  • The mere fact that the company has customers, suppliers or a group company in that country, or that the country is in a different time zone (44.18).
  • Contact that is occasional or minor in the context of the relationship, such as short visits to a client (44.14).

Where there is no commercial reason, the home is not a place of business of the enterprise unless other facts point the other way (44.19). The detail is in the commercial reason test.

The five examples

Paragraph 44.21 illustrates the tests with five cases, involving an employee of RCo, a company of State R, working from State S:

ExampleFactsOutcome
AWorks from a rented place in State S for three consecutive months after a holidayNot fixed: no permanent establishment
BWorks from home in State S one or two days a week all year: 30 % of working timeFixed, but below 50 %: not a place of business
C80 % from home in State S, and regularly visits clients there to provide servicesCommercial reason: permanent establishment
D60 % from home; serves clients everywhere remotely; one client visit a quarterNo commercial reason: no permanent establishment
EAlmost entirely from home, chosen so that customers in other time zones get real-time serviceCommercial reason: permanent establishment

Each conclusion is given "in the absence of other facts and circumstances showing otherwise". We go through them with Spanish scenarios in the five OECD examples explained.

The exception: when the individual is the business

The two tests are designed for an employee of a company whose business is run elsewhere. They do not protect someone who is the only person, or the main person, conducting the business. The Commentary's example is a non-resident consultant who spends an extended period in a country and runs most of her consulting business from an office in her home there: that home office is a place of business of the enterprise (44.20).

For founders, sole directors and owners of one-person companies who move to Spain, this is the paragraph that matters, and it sits alongside the separate question of whether the company itself has become resident in Spain. See founders, consultants and one-person companies.

How this applies in Spain

Spain is a member of the OECD and entered no observation on paragraphs 44.1 to 44.21. Israel, the Czech Republic and Chile did, and India and Nigeria, among non-member economies, recorded disagreement. That matters for cases involving those countries.

The Commentary is not law. It is the agreed interpretation of the Model on which Spain's treaties are based, and Spanish tax authorities and courts rely on it constantly. There is, however, a live question about how far a Commentary adopted in 2025 can be used to interpret a treaty signed years earlier, on which the Spanish Supreme Court has been cautious. We deal with it in does the 2025 Commentary apply to Spain's existing treaties?

Before the update, the Spanish tax authorities had already taken a restrained line in published rulings on employees who chose to work from Spain for personal reasons, concluding that the home was not at the employer's disposal. The new text gives that position a firmer and more detailed footing, and at the same time makes clear when it stops applying.

What a permanent establishment does not decide

Three things are often confused with the permanent establishment question and are independent of it:

  • The employee's own tax. A person who lives in Spain is taxed in Spain on their salary whether or not the employer has a permanent establishment.
  • Payroll and social security. A foreign employer can have Spanish withholding and social security obligations without a permanent establishment. See employer obligations without a permanent establishment.
  • The agent route. A person in Spain who habitually concludes contracts for the company, or plays the principal role in concluding them, can create a permanent establishment under Article 5(5) even if the home-office tests are passed. See the dependent agent route.

What to do now

For a foreign company with people in Spain, the update turns a vague risk into something that can be assessed and documented:

  1. List who works from Spain, since when, and what share of their working time is spent there.
  2. Describe each role honestly. Does the job involve customers, suppliers or partners in Spain or nearby? Was the person hired because they are in Spain, or despite it?
  3. Look at who they are. A founder or the person who runs the business is assessed differently from an engineer in a team of two hundred.
  4. Check contract authority. Who negotiates and signs with customers?
  5. Keep evidence of working patterns and of the reason the arrangement exists.
  6. Deal with payroll and social security regardless of the answer.

We set this out as a working document in a remote-work checklist for foreign employers. If the conclusion is that a permanent establishment exists, this is what follows. And where a visa is involved, see digital nomad visa, Beckham regime and the employer's risk.

Source: OECD (2026), Model Tax Convention on Income and on Capital 2025 (Full Version), Commentary on Article 5, paragraphs 44.1 to 44.21, added on 18 November 2025. The Commentary is described here in our own words; the paragraph numbers are given so that it can be checked against the original.

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Frequently asked questions

Does one employee working from home in Spain create a permanent establishment?
Not by that fact alone. Under the 2025 Commentary the home is generally not a place of business of the employer if less than half of the working time is spent there, or if there is no commercial reason for the person to be in Spain. A founder or the main person running the business is treated differently.
Is the 50 % threshold a legal safe harbour?
It is interpretive guidance, not legislation, but it is drafted in strong terms: below 50 % the place would generally not be a place of business, and exceptions are not expected in most situations.
Our employee asked to move to Spain for family reasons. Does that help?
Yes. Permitting remote work solely to obtain or retain a person is expressly said not to be a commercial reason. What matters next is whether the job itself has a real link with Spain.
Does the update change the dependent agent rule?
No. Article 5(5) and its Commentary are unchanged and apply separately.
From when does this apply?
The Commentary was adopted on 18 November 2025. Tax authorities that accept later Commentaries as a guide to earlier treaties will apply it to open periods; others may resist where they consider that it changes the meaning of the treaty.
Disclaimer: Content on this page is general information and does not constitute legal or tax advice. Rates, thresholds and deadlines change, and how they apply depends on the facts of each case. No professional relationship arises until an engagement letter is signed. SALAMA LEGAL SLP, Colegiado nº 11.294 ICAMálaga.
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