Cross-Border Remote Work and Permanent Establishment: Mitigating Risk for Multinational Employers

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Quick Hits

• The OECD’s November 2025 update to the Model Tax Convention introduces a new two-part framework for assessing permanent establishment (PE) risks from cross-border remote work, including a 50 percent working time safe harbor and a “commercial reason” test.
• No automatic PE arises from mere employee-driven remote work in another country, providing relief for multinational employers managing hybrid and distributed teams.
• Employers may want to track working time splits across borders to avoid unintended tax nexus, social security shifts, or withholding obligations in foreign jurisdictions.
• The OECD guidance aligns with post-pandemic trends but requires updates to global mobility policies, contracts, and compliance tech to mitigate risks in bilateral treaty contexts.

For multinational employers, these changes are a double-edged sword: they provide predictability for “borderless” workforces but underscore the importance of robust tracking and policy frameworks to avoid unexpected tax liabilities, social security complications, and compliance pitfalls across jurisdictions.

New Framework for Remote Work PE Risks

The updated commentary on Article 5 replaces outdated 2012 guidance with a comprehensive, facts-and-circumstances approach designed to prevent “micro-PEs” while ensuring fair taxation. At its core is a two-part test:

1. Temporal test (50 percent working time benchmark): If an employee spends less than 50 percent of his or her total working time for the enterprise at a remote location in another treaty country over any twelve-month period, that location is generally not considered a “fixed place of business,” and no PE arises. This safe harbor accommodates incidental remote stints, such as short-term relocations for family reasons or digital nomad lifestyles, without triggering tax exposure. However, exceeding 50 percent shifts the analysis to the qualitative factors.
2. Commercial reason test (qualitative assessment): For arrangements over the 50 percent threshold, the OECD examines whether the employee’s physical presence in the foreign country serves a genuine commercial purpose for the business—beyond personal convenience. Factors include:

• Business ties to the location (e.g., serving local clients, accessing regional markets, or supporting on-site operations).
• Continuity and permanence of the remote setup.
• Whether the location is effectively at the enterprise’s disposal.
• Exclusion of preparatory or auxiliary activities (per Article 5(4)).

If the remote work is primarily for employee retention, cost efficiencies, or flexibility without a location-specific business link, a PE is unlikely. Conversely, client-facing or sales roles with strong jurisdictional ties could create one.

Illustrative examples in the commentary highlight scenarios like short-term internal work (no PE) versus long-term market-serving activities (likely PE), helping employers anticipate outcomes.

Cross-Border Implications for Employers

In a world where talent crosses borders seamlessly (think U.S.-based tech firms with EU remote workers or Swiss multinationals employing French commuters), these updates intersect with bilateral tax treaties, social security coordination (e.g., EU Regulation 883/2004 or U.S. totalization agreements), and immigration rules. Key risks include a number of tax and withholding obligations.

For example, a PE could trigger corporate income tax, profit attribution under Article 7 of the Model Tax Convention, and employee withholding in the host country, complicating payroll and increasing costs.

• Social security and benefits shifts: Exceeding time thresholds might reassign affiliation, affecting contributions and coverage, especially under multilateral agreements that currently exist in Europe which allow up to 49.9 percent telework between countries without changes.
• Global mobility challenges: Digital nomads or hybrid teams risk creating unintended location discrimination, particularly in high-enforcement jurisdictions like India or non-OECD countries that may deviate from the Model where the Temporal Test does not apply.
• Audit and compliance burdens: Tax authorities are increasingly scrutinizing remote arrangements, with the OECD’s guidance influencing interpretations even before treaty amendments.

These changes build on 2026 trends such as expanding digital nomad visas, amplifying the importance of integrated strategies.

Practical Steps for Multinational Employers

To navigate this landscape, employers may want to consider the following steps:

• auditing current cross-border remote setups, focusing on time splits and commercial justifications;
• implementing AI-powered tracking tools (e.g., geofencing apps integrated with payroll) for accurate day logs and automated alerts;
• revising work-from-anywhere policies, employment contracts, and approval processes to incorporate the 50 percent benchmark and documentation requirements;
• coordinating with tax, HR, and legal teams for treaty-specific advice, including  certificates for social security proving that employees working temporarily in another European Union member state or European Economic Area country remain covered by their home country’s social security system (A1 certificate); and
• considering Employer of Record (EOR) solutions or entity restructuring to minimize PE exposure in high-risk scenarios.

Proactive compliance not only mitigates risks but also enhances talent attraction in a competitive global market.

Ogletree Deakins’ Cross-Border Practice Group will continue to monitor developments and will post updates on the Cross-Border and Employment Tax blogs as additional information becomes available.

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