The notion of a stable establishment is essential to assess whether the benefits derived from industrial or commercial activities carried out on the territory by a national corporation are taxable under the corporate tax in Saint-Martin.
Article 5 of the tax treaty concluded between the State and the Collectivity dated 21 December 2010, drafted according to the OECD model, includes a precise definition of the permanent establishment; It is therefore necessary to refer to it. According to this article, "Strategic establishment" means a fixed business facility through which a company operates all or part of its business."
With regard to corporate tax, domestic law (article 209 of the SMTC) retains the concept of "companies operated in Saint-Martin".
The usual exercise of an activity is characterized by three non-cumulative criteria:
• The operation of an establishment in Saint-Martin;
• The execution in Saint-Martin of operations through a dependent representative;
• The conduct of operations forming a complete business cycle.
With respect to the TGCA, the concept of a stable establishment does not affect the subjugation, which is determined by the territoriality rules for both deliveries and service delivery (SMTC Articles 250 and 252).
Section 80 B of the Tax Procedures Book allows a taxpayer in good faith to question the administration from a written, accurate, complete and sincere presentation of the factual situation, so that it provides, for example, the assurance that it does not have in Saint-Martin a permanent establishment or a fixed base within the meaning of the tax agreement linking the Collectivity to the State in which that taxpayer is a resident.
To carry out this approach, companies will now be able to use the attached questionnaire model, prepared by the Collectivy.
/files/file/Documentation/questionnaire%20rescrit%20ES%20SXM.pdf
