According to the commentary on art. 5 of the OECD Model of the Double taxation treaty the definition of a permanent establishment contains the following conditions:

  • the existence of a “place of business”, a facility such as premises or, machinery or equipment;
  • the place must be fixed, it must be established at a distinct place with a certain degree of permanence;
  • the carrying on of the business through this fixed place of business.

Considering the conditions and the business model, in our opinion, the Romanian company will not have any PE in Poland. The same comments should be considered in relations to the services that the Polish company will provide to its Romanian subsidiary. If the Polish company will sent people to the Romanian office with a certain regularity and permanence then having a PE in Romania might be the case.

Independently of the PE related comments, we have to include comments regarding and eventual VAT registration for the Romanian company in Poland. In our opinion, it might be an obligation to register for VAT purposes in Poland if the goods will be transported from the Polish company directly to the Romanian client, if the transportation is not done on behalf and account of Polish company. Thus, the solution to avoid such risk is to organize the business as already designed, meaning the transport of the goods is done on behalf and account of the Polish company.