אמנת המודל של ה-OECD (המשך)
מיסוי בינלאומי -
ARTICLES OF THE OECD MODEL
CONVENTION WITH
RESPECT TO TAXES
ON INCOME AND ON CAPITAL
[as they read on 28 January 2003]
SUMMARY OF THE CONVENTION
CHAPTER II
Definitions
Art. 3 General definitions
Art. 4 Resident
Art. 5 Permanent establishment
CHAPTER II
DEFINITIONS
Article 3
GENERAL DEFINITIONS
1.
For the purposes of
this Convention, unless the context otherwise requires:
a) the term "person"
includes an individual, a company and any other body of persons;
b) the term "company" means
any body corporate or any entity that is treated as a body corporate
for tax purposes;
c) the term "enterprise"
applies to the carrying on of any business;
d) the terms "enterprise of
a Contracting State" and "enterprise of the other Contracting State"
mean respectively an enterprise carried on by a resident of a
Contracting State and an enterprise carried on by a resident of the
other Contracting State;
e) the term "international
traffic" means any transport by a ship or aircraft operated by an
enterprise that has its place of effective management in a
Contracting State, except when the ship or aircraft is operated
solely between places in the other Contracting State;
f) the term "competent
authority" means:
(i) (in
State A): ................................
(ii) (in
State B): ................................
g) the term "national", in
relation to a Contracting State, means:
(i) any
individual possessing the nationality or citizenship of that
Contracting
State; and
(ii) any
legal person, partnership or association deriving its status as such
from the laws in force in that Contracting State;
h) the term "business"
includes the performance of professional services and of other
activities of an independent character.
2.
As regards the
application of the Convention at any time by a Contracting State,
any term not defined therein shall, unless the context otherwise
requires, have the meaning that it has at that time under the law of
that State for the purposes of the taxes to which the Convention
applies, any meaning under the applicable tax laws of that State
prevailing over a meaning given to the term under other laws of that
State.
Article 4
RESIDENT
1.
For the purposes of
this Convention, the term "resident of a Contracting State" means
any person who, under the laws of that State, is liable to tax
therein by reason of his domicile, residence, place of management or
any other criterion of a similar nature, and also includes that
State and any political subdivision or local authority thereof. This
term, however, does not include any person who is liable to tax in
that State in respect only of income from sources in that State or
capital situated therein.
2.
Where by reason of the provisions of paragraph 1 an individual is a
resident of both Contracting States, then his status shall be
determined as follows:
a) he shall be deemed to be
a resident only of the State in which he has a permanent home
available to him; if he has a permanent home available to him in
both States, he shall be deemed to be a resident only of the State
with which his personal and economic relations are closer (centre of
vital interests);
b) if the State in which he
has his centre of vital interests cannot be determined, or if he has
not a permanent home available to him in either State, he shall be
deemed to be a resident only of the State in which he has an
habitual abode;
c) if he has an habitual
abode in both States or in neither of them, he shall be deemed to be
a resident only of the State of which he is a national;
d) if he is a national of
both States or of neither of them, the competent authorities of the
Contracting States shall settle the question by mutual agreement.
3.
Where by reason of the provisions of paragraph 1 a person other than
an individual is a resident of both Contracting States, then it
shall be deemed to be a resident only of the State in which its
place of effective management is situated.
Article 5
PERMANENT ESTABLISHMENT
1.
For the purposes of
this Convention, the term "permanent establishment" means a fixed
place of business through which the business of an enterprise is
wholly or partly carried on.
2.
The term "permanent
establishment" includes especially:
a) a place of management;
b) a branch;
c) an office;
d) a factory;
e) a workshop, and
f) a mine, an oil or gas
well, a quarry or any other place of extraction of natural
resources.
3.
A building site or
construction or installation project constitutes a permanent
establishment only if it lasts more than twelve months.
4.
Notwithstanding the preceding provisions of this Article, the term
"permanent establishment" shall be deemed not to include:
a) the use of facilities
solely for the purpose of storage, display or delivery of goods or
merchandise belonging to the enterprise;
b) the maintenance of a
stock of goods or merchandise belonging to the enterprise solely for
the purpose of storage, display or delivery;
c) the maintenance of a
stock of goods or merchandise belonging to the enterprise solely for
the purpose of processing by another enterprise;
d) the maintenance of a
fixed place of business solely for the purpose of purchasing goods
or merchandise or of collecting information, for the enterprise;
e) the maintenance of a
fixed place of business solely for the purpose of carrying on, for
the enterprise, any other activity of a preparatory or auxiliary
character;
f) the maintenance of a
fixed place of business solely for any combination of activities
mentioned in subparagraphs a) to e), provided that the
overall activity
of the fixed place
of business resulting from this combination is of a preparatory or
auxiliary character.
5.
Notwithstanding the provisions of paragraphs 1 and 2, where a person ?
other than an agent of an independent status to whom paragraph 6
applies ? is acting on behalf of an enterprise and has, and
habitually exercises, in a Contracting State an authority to
conclude contracts in the name of the enterprise, that enterprise
shall be deemed to have a permanent establishment in that State in
respect of any activities which that person undertakes for the
enterprise, unless the activities of such person are limited to
those mentioned in paragraph 4 which, if exercised through a fixed
place of business, would not make this fixed place of business a
permanent establishment under the provisions of that paragraph.
6.
An enterprise shall
not be deemed to have a permanent establishment in a Contracting
State merely because it carries on business in that State through a
broker, general commission agent or any other agent of an
independent status, provided that such persons are acting in the
ordinary course of their business.
7.
The fact that a
company which is a resident of a Contracting State controls or is
controlled by a company which is a resident of the other Contracting
State, or which carries on business in that other State (whether
through a permanent establishment or otherwise), shall not of itself
constitute either company a permanent establishment of the other.
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