אמנת המודל של ה-OECD (המשך)
מיסוי בינלאומי -
ARTICLES OF THE OECD MODEL
CONVENTION WITH
RESPECT TO TAXES
ON INCOME AND ON CAPITAL
ON INCOME AND ON CAPITAL
[as they read on 28 January 2003]
SUMMARY OF THE CONVENTION
CHAPTER III
Taxation of income
Art. 6 Income from immovable property
Art. 7 Business profits
Art. 8 Shipping, inland waterways transport and air transport
Art. 9 Associated enterprises
Art. 10 Dividends
Art. 11 Interest
Art. 12 Royalties
Art. 13 Capital gains
Art. 14 [Deleted]
Art. 15 Income from employment
Art. 16 Directors' fees
Art. 17 Artistes and sportsmen
Art. 18 Pensions
Art. 19 Government Service
Art. 20 Students
Art. 21 Other income
CHAPTER III
TAXATION OF INCOME
Article 6
INCOME FROM IMMOVABLE PROPERTY
1.
Income derived by a resident of a Contracting State from immovable
property (including income from agriculture or forestry) situated in
the other Contracting State may be taxed in that other State.
2.
The term "immovable
property" shall have the meaning which it has under the law of the
Contracting State in which the property in question is situated. The
term shall in any case include property accessory to immovable
property, livestock and equipment used in agriculture and forestry,
rights to which the provisions of general law respecting landed
property apply, usufruct of immovable property and rights to
variable or fixed payments as consideration for the working of, or
the right to work, mineral deposits, sources and other natural
resources; ships, boats and aircraft shall not be regarded as
immovable property.
3.
The provisions of
paragraph 1 shall apply to income derived from the direct use,
letting, or use in any other form of immovable property.
4.
The provisions of
paragraphs 1 and 3 shall also apply to the income from immovable
property of an enterprise.
Article 7
BUSINESS PROFITS
1.
The profits of an
enterprise of a Contracting State shall be taxable only in that
State unless the enterprise carries on business in the other
Contracting State through a permanent establishment situated
therein. If the enterprise carries on business as aforesaid, the
profits of the enterprise may be taxed in the other State but only
so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a
Contracting State carries on business in the other Contracting State
through a permanent establishment situated therein, there shall in
each Contracting State be attributed to that permanent establishment
the profits which it might be expected to make if it were a distinct
and separate enterprise engaged in the same or similar activities
under the same or similar conditions and dealing wholly
independently with the enterprise of which it is a permanent
establishment.
3.
In determining the
profits of a permanent establishment, there shall be allowed as
deductions expenses which are incurred for the purposes of the
permanent establishment, including executive and general
administrative expenses so incurred, whether in the State in which
the permanent establishment is situated or elsewhere.
4.
Insofar as it has been customary in a Contracting State to determine
the profits to be attributed to a permanent establishment on the
basis of an apportionment of the total profits of the enterprise to
its various parts, nothing in paragraph 2 shall preclude that
Contracting State from determining the profits to be taxed by such
an apportionment as may be customary; the method of apportionment
adopted shall, however, be such that the result shall be in
accordance with the principles contained in this Article.
5.
No profits shall be
attributed to a permanent establishment by reason of the mere
purchase by that permanent establishment of goods or merchandise for
the enterprise.
6.
For the purposes of
the preceding paragraphs, the profits to be attributed to the
permanent establishment shall be determined by the same method year
by year unless there is good and sufficient reason to the contrary.
7.
Where profits include items of income which are dealt with separately
in other Articles of this Convention, then the provisions of those
Articles shall not be affected by the provisions of this Article.
Article 8
SHIPPING, INLAND WATERWAYS TRANSPORT AND AIR TRANSPORT
1.
Profits from the operation of ships or aircraft in international
traffic shall be taxable only in the Contracting State in which the
place of effective management of the enterprise is situated.
2.
Profits from the operation of boats engaged in inland waterways
transport shall be taxable only in the Contracting State in which
the place of effective management of the enterprise is situated.
3.
If the place of
effective management of a shipping enterprise or of an inland
waterways transport enterprise is aboard a ship or boat, then it
shall be deemed to be situated in the Contracting State in which the
home harbour of the ship or boat is situated, or, if there is no
such home harbour, in the Contracting State of which the operator of
the ship or boat is a resident.
4.
The provisions of
paragraph 1 shall also apply to profits from the participation in a
pool, a joint business or an international operating agency.
Article 9
ASSOCIATED ENTERPRISES
1.
Where
a) an enterprise of a
Contracting State participates directly or indirectly in the
management, control or capital of an enterprise of the other
Contracting State, or
b) the same persons
participate directly or indirectly in the management, control or
capital of an enterprise of a Contracting State and an enterprise of
the other Contracting State, and in either case conditions are made
or imposed between the two enterprises in their commercial or
financial relations which differ from those which would be made
between independent enterprises, then any profits which would, but
for those conditions, have accrued to one of the enterprises, but,
by reason of those conditions, have not so accrued, may be included
in the profits of that enterprise and taxed accordingly.
2.
Where a Contracting State includes in the profits of an enterprise of
that State ? and taxes accordingly ? profits on which an enterprise
of the other Contracting State has been charged to tax in that other
State and the profits so included are profits which would have
accrued to the enterprise of the first-mentioned State if the
conditions made between the two enterprises had been those which
would have been made between independent enterprises, then that
other State shall make an appropriate adjustment to the amount of
the tax charged therein on those profits. In determining such
adjustment, due regard shall be had to the other provisions of this
Convention and the competent authorities of the Contracting States
shall if necessary consult each other.
Article 10
DIVIDENDS
1.
Dividends paid by a company which is a resident of a Contracting State
to a resident of the other Contracting State may be taxed in that
other State.
2.
However, such dividends may also be taxed in the Contracting State of
which the company paying the dividends is a resident and according
to the laws of that State, but if the beneficial owner of the
dividends is a resident of the other Contracting State, the tax so
charged shall not exceed:
a) 5 per cent of the gross
amount of the dividends if the beneficial owner is a company (other
than a partnership) which holds directly at least 25 per cent of
the capital of the
company paying the dividends;
b) 15 per cent of the gross
amount of the dividends in all other cases. The competent
authorities of the Contracting States shall by mutual agreement
settle the mode of application of these limitations. This paragraph
shall not affect the taxation of the company in respect of the
profits out of which the dividends are paid.
3.
The term
"dividends" as used in this Article means income from shares,
"jouissance" shares or "jouissance" rights, mining shares, founders'
shares or other rights, not being debt-claims, participating in
profits, as well as income from other corporate rights which is
subjected to the same taxation treatment as income from shares by
the laws of the State of which the company making the distribution
is a resident.
4.
The provisions of
paragraphs 1 and 2 shall not apply if the beneficial owner of the
dividends, being a resident of a Contracting State, carries on
business in the other Contracting State of which the company paying
the dividends is a resident through a permanent establishment
situated therein and the holding in respect of which the dividends
are paid is effectively connected with such permanent establishment.
In such case the provisions of Article 7 shall apply.
5.
Where a company which is a resident of a Contracting State derives
profits or income from the other Contracting State, that other State
may not impose any tax on the dividends paid by the company, except
insofar as such dividends are paid to a resident of that other State
or insofar as the holding in respect of which the dividends are paid
is effectively connected with a permanent establishment situated in
that other State, nor subject the company's undistributed profits to
a tax on the company's undistributed profits, even if the dividends
paid or the undistributed profits consist wholly or partly of
profits or income arising in such other State.
Article 11
INTEREST
1.
Interest arising in a Contracting State and paid to a resident of the
other Contracting State may be taxed in that other State.
2.
However, such interest may also be taxed in the Contracting State in
which it arises and according to the laws of that State, but
if the beneficial owner of the interest is a resident of the other
Contracting State, the tax so charged shall not exceed 10 per cent
of the gross amount of the interest. The competent authorities of
the Contracting States shall by mutual agreement settle the mode of
application of this limitation.
3.
The term "interest"
as used in this Article means income from debt-claims of every kind,
whether or not secured by mortgage and whether or not carrying a
right to participate in the debtor's profits, and in particular,
income from government securities and income from bonds or
debentures, including premiums and prizes attaching to such
securities, bonds or debentures. Penalty charges for late payment
shall not be regarded as interest for the purpose of this Article.
4.
The provisions of
paragraphs 1 and 2 shall not apply if the beneficial owner of the
interest, being a resident of a Contracting State, carries on
business in the other Contracting State in which the interest arises
through a permanent establishment situated therein and the
debt-claim in respect of which the interest is paid is effectively
connected with such permanent establishment. In such case the
provisions of Article 7 shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the
payer is a resident of that State. Where, however, the person paying
the interest, whether he is a resident of a Contracting State or
not, has in a Contracting State a permanent establishment in
connection with which the indebtedness on which the interest is paid
was incurred, and such interest is borne by such permanent
establishment, then such interest shall be deemed to arise in the
State in which the permanent establishment is situated.
6.
Where, by reason of a special relationship between the payer and the
beneficial owner or between both of them and some other person, the
amount of the interest, having regard to the debt-claim for
which it is paid, exceeds the amount which would have been agreed
upon by the payer and the beneficial owner in the absence of such
relationship, the provisions of this Article shall apply only to the
last-mentioned amount. In such case, the excess part of the payments
shall remain taxable according to the laws of each Contracting
State, due regard being had to the other provisions of this
Convention.
Article 12
ROYALTIES
1.
Royalties arising in a Contracting State and beneficially owned by a
resident of the other Contracting State shall be taxable only in
that other State.
2.
The term
"royalties" as used in this Article means payments of any kind
received as a consideration for the use of, or the right to use, any
copyright of literary, artistic or scientific work including
cinematograph films, any patent, trade mark, design or model, plan,
secret formula or process, or for information concerning industrial,
commercial or scientific experience.
3.
The provisions of
paragraph 1 shall not apply if the beneficial owner of the
royalties, being a resident of a Contracting State, carries on
business in the other Contracting State in which the royalties arise
through a permanent establishment situated therein and the right or
property in respect of which the royalties are paid is effectively
connected with such permanent establishment. In such case the
provisions of Article 7 shall apply.
4.
Where, by reason of a special relationship between the payer and the
beneficial owner or between both of them and some other person, the
amount of the royalties, having regard to the use, right or
information for which they are paid, exceeds the amount which would
have been agreed upon by the payer and the beneficial owner in the
absence of such relationship, the provisions of this Article shall
apply only to the last-mentioned amount. In such case, the excess
part of the payments shall remain taxable according to the laws of
each Contracting State, due regard being had to the other provisions
of this Convention.
Article 13
CAPITAL GAINS
1.
Gains derived by a resident of a Contracting State from the alienation
of immovable property referred to in Article 6 and situated in the
other Contracting State may be taxed in that other State.
2.
Gains from the alienation of movable property forming part of the
business property of a permanent establishment which an enterprise
of a Contracting State has in the other Contracting State, including
such gains from the alienation of such a permanent establishment
(alone or with the whole enterprise), may be taxed in that other
State.
3.
Gains from the alienation of ships or aircraft operated in
international traffic, boats engaged in inland waterways transport
or movable property pertaining to the operation of such ships,
aircraft or boats, shall be taxable only in the Contracting State in
which the place of effective management of the enterprise is
situated.
4.
Gains derived by a resident of a Contracting State from the alienation
of shares deriving more than 50 per cent of their value directly or
indirectly from immovable property situated in the other Contracting
State may be taxed in that other State.
5.
Gains from the alienation of any property, other than that referred to
in paragraphs 1, 2, 3 and 4, shall be taxable only in the
Contracting State of which the alienator is a resident.
[Article 14 -
INDEPENDENT PERSONAL SERVICES]
[Deleted]
Article 15
INCOME FROM EMPLOYMENT
1.
Subject to the provisions of Articles 16, 18 and 19, salaries, wages
and other similar remuneration derived by a resident of a
Contracting State in respect of an employment shall be taxable only
in that State unless the employment is exercised in the other
Contracting State. If the employment is so exercised, such
remuneration as is derived therefrom may be taxed in that other
State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by
a resident of a Contracting State in respect of an employment
exercised in the other Contracting State shall be taxable only in
the first-mentioned State if:
a) the recipient is present
in the other State for a period or periods not exceeding in the
aggregate 183 days in any twelve month period commencing or ending
in the fiscal year concerned, and
b) the remuneration is paid
by, or on behalf of, an employer who is not a resident of the other
State, and
c) the remuneration is not
borne by a permanent establishment which the employer has in the
other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration
derived in respect of an employment exercised aboard a ship or
aircraft operated in international traffic, or aboard a boat engaged
in inland waterways transport, may be taxed in the Contracting State
in which the place of effective management of the enterprise is
situated.
Article 16
DIRECTORS' FEES
Directors' fees and other similar payments derived by a resident of a
Contracting State in his capacity as a member of the board of
directors of a company which is a resident of the other Contracting
State may be taxed in that other State.
Article 17
ARTISTES AND SPORTSMEN
1.
Notwithstanding the provisions of Articles 7 and 15, income derived by
a resident of a Contracting State as an entertainer, such as a
theatre, motion picture, radio or television artiste, or a musician,
or as a sportsman, from his personal activities as such exercised in
the other Contracting State, may be taxed in that other State.
2.
Where income in respect of personal activities exercised by an
entertainer or a sportsman in his capacity as such accrues not to
the entertainer or sportsman himself but to another person, that
income may, notwithstanding the provisions of Articles 7 and 15, be
taxed in the Contracting State in which the activities of the
entertainer or sportsman are exercised.
Article 18
PENSIONS
Subject to the provisions of paragraph 2 of Article 19, pensions and
other similar remuneration paid to a resident of a Contracting State
in consideration of past employment shall be taxable only in that
State.
Article 19
GOVERNMENT SERVICE
1.
a) Salaries, wages and
other similar remuneration, other than a pension, paid by a
Contracting State or a political subdivision or a local authority
thereof to an individual in respect of services rendered to that
State or subdivision or authority shall be taxable only in that
State.
b) However, such salaries,
wages and other similar remuneration shall be taxable only in the
other Contracting State if the services are rendered in that State
and the individual is a resident of that State who:
(i) is a
national of that State; or
(ii) did not
become a resident of that State solely for the purpose of rendering
the services.
2.
a) Any pension paid by, or
out of funds created by, a Contracting State or a political
subdivision or a local authority thereof to an individual in respect
of services rendered to that State or subdivision or authority shall
be taxable only in that State.
b) However, such pension
shall be taxable only in the other Contracting State if the
individual is a resident of, and a national of, that State.
3.
The provisions of
Articles 15, 16, 17, and 18 shall apply to salaries, wages and other
similar remuneration, and to pensions, in respect of services
rendered in connection with a business carried on by a Contracting
State or a political subdivision or a local authority thereof.
Article 20
STUDENTS
Payments which a student or business apprentice who is or was
immediately before visiting a Contracting State a resident of the
other Contracting State and who is present in the first-mentioned
State solely for the purpose of his education or training receives
for the purpose of his maintenance, education or training shall not
be taxed in that State, provided that such payments arise from
sources outside that State.
Article 21
OTHER INCOME
1.
Items of income of a resident of a Contracting State, wherever
arising, not dealt with in the foregoing Articles of this Convention
shall be taxable only in that State.
2.
The provisions of
paragraph 1 shall not apply to income, other than income from
immovable property as defined in paragraph 2 of Article 6, if the
recipient of such income, being a resident of a Contracting State,
carries on business in the other Contracting State through a
permanent establishment situated therein and the right or property
in respect of which the income is paid is effectively connected with
such permanent establishment. In such case the provisions of Article
7 shall apply.
|
