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
TITLE AND PREAMBLE
CHAPTER I
Scope of the Convention
Art. 1 Persons Covered
Art. 2 Taxes covered
CHAPTER II
Definitions
Art. 3 General definitions
Art. 4 Resident
Art. 5 Permanent establishment
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 IV
Taxation of capital
Art. 22 Capital
CHAPTER V
Methods for elimination of double taxation
Art. 23 A Exemption method
Art. 23 B Credit method
CHAPTER VI
Special provisions
Art. 24 Non-discrimination
Art. 25 Mutual agreement procedure
Art. 26 Exchange of information
Art. 27 Assistance in the collection of taxes
Art. 28 Members of diplomatic missions and consular posts
Art. 29 Territorial extension
CHAPTER VII
Final provisions
Art. 30 Entry into force
Art. 31Termination
TITLE OF THE CONVENTION
Convention between (State A) and (State B)
with respect to taxes on income and on capital
1
PREAMBLE TO THE CONVENTION
2
States wishing to do so may follow the widespread practice of
including in the title a reference to either the avoidance of double
taxation or to both the avoidance of double taxation and the
prevention of fiscal evasion. The Preamble of the Convention shall
be drafted in accordance with the constitutional procedure of both
Contracting States.
CHAPTER I
SCOPE OF THE CONVENTION
Article 1
PERSONS COVERED
This Convention shall apply to persons who are residents of one or
both of the Contracting States.
Article 2
TAXES COVERED
1.
This Convention shall apply to taxes on income and on capital imposed
on behalf of a Contracting State or of its political subdivisions or
local authorities, irrespective of the manner in which they are
levied.
2.
There shall be regarded as taxes on income and on capital all taxes
imposed on total income, on total capital, or on elements of income
or of capital, including taxes on gains from the alienation of
movable or immovable property, taxes on the total amounts of wages
or salaries paid by enterprises, as well as taxes on capital
appreciation.
3.
The existing taxes
to which the Convention shall apply are in particular:
a) (in State A):
..........................................
b) (in State B):
..........................................
4.
The Convention
shall apply also to any identical or substantially similar taxes
that are imposed after the date of signature of the Convention in
addition to, or in place of, the existing taxes. The competent
authorities of the Contracting States shall notify each other of any
significant changes that have been made in their taxation laws.
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.
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.
CHAPTER IV
TAXATION OF CAPITAL
Article 22
CAPITAL
1.
Capital represented by immovable property referred to in Article 6,
owned by a resident of a Contracting State and situated in the other
Contracting State, may be taxed in that other State.
2.
Capital represented by 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 may be taxed in
that other State.
3.
Capital represented by ships and aircraft operated in international
traffic and by boats engaged in inland waterways transport, and by
movable property pertaining to the operation of such ships, aircraft
and boats, shall be taxable only in the Contracting State in which
the place of effective management of the enterprise is situated.
4.
All other elements
of capital of a resident of a Contracting State shall be taxable
only in that State.
CHAPTER V
METHODS FOR ELIMINATION OF DOUBLE TAXATION
Article 23 A
EXEMPTION METHOD
1.
Where a resident of a Contracting State derives income or owns capital
which, in accordance with the provisions of this Convention, may be
taxed in the other Contracting State, the first-mentioned State
shall, subject to the provisions of paragraphs 2 and 3, exempt such
income or capital from tax.
2.
Where a resident of a Contracting State derives items of income which,
in accordance with the provisions of Articles 10 and 11, may be
taxed in the other Contracting State, the first-mentioned State
shall allow as a deduction from the tax on the income of that
resident an amount equal to the tax paid in that other State. Such
deduction shall not, however, exceed that part of the tax, as
computed before the deduction is given, which is attributable to
such items of income derived from that other State.
3.
Where in accordance with any provision of the Convention income
derived or capital owned by a resident of a Contracting State is
exempt from tax in that State, such State may nevertheless, in
calculating the amount of tax on the remaining income or capital of
such resident, take into account the exempted income or capital.
4.
The provisions of
paragraph 1 shall not apply to income derived or capital owned by a
resident of a Contracting State where the other Contracting State
applies the provisions of the Convention to exempt such income or
capital from tax or applies the provisions of paragraph 2 of Article
10 or 11 to such income.
Article 23 B
CREDIT METHOD
1.
Where a resident of a Contracting State derives income or owns capital
which, in accordance with the provisions of this Convention, may be
taxed in the other Contracting State, the first-mentioned State
shall allow:
a) as a deduction from the
tax on the income of that resident, an amount equal to the income
tax paid in that other State;
b) as a deduction from the
tax on the capital of that resident, an amount equal to the capital
tax paid in that other State. Such deduction in either case shall
not, however, exceed that part of the income tax or capital tax, as
computed before the deduction is given, which is attributable, as
the case may be, to the income or the capital which may be taxed in
that other State.
2.
Where in accordance with any provision of the Convention income
derived or capital owned by a resident of a Contracting State is
exempt from tax in that State, such State may nevertheless, in
calculating the amount of tax on the remaining income or capital of
such resident, take into account the exempted income or capital.
CHAPTER VI
SPECIAL PROVISIONS
Article 24
NON-DISCRIMINATION
1.
Nationals of a Contracting State shall not be subjected in the other
Contracting State to any taxation or any requirement connected
therewith, which is other or more burdensome than the taxation and
connected requirements to which nationals of that other State in the
same circumstances, in particular with respect to residence, are or
may be subjected. This provision shall, notwithstanding the
provisions of Article 1, also apply to persons who are not residents
of one or both of the Contracting States.
2.
Stateless persons who are residents of a Contracting State shall not
be subjected in either Contracting State to any taxation or any
requirement connected therewith, which is other or more burdensome
than the taxation and connected requirements to which nationals of
the State concerned in the same circumstances, in particular with
respect to residence, are or may be subjected.
3.
The taxation on a
permanent establishment which an enterprise of a Contracting State
has in the other Contracting State shall not be less favourably
levied in that other State than the taxation levied on enterprises
of that other State carrying on the same activities. This provision
shall not be construed as obliging a Contracting State to grant to
residents of the other Contracting State any personal allowances,
reliefs and reductions for taxation purposes on account of civil
status or family responsibilities which it grants to its own
residents.
4.
Except where the provisions of paragraph 1 of Article 9, paragraph 6
of Article 11, or paragraph 4 of Article 12, apply, interest,
royalties and other disbursements paid by an enterprise of a
Contracting State to a resident of the other Contracting State
shall, for the purpose of determining the taxable profits of such
enterprise, be deductible under the same conditions as if they had
been paid to a resident of the first-mentioned State. Similarly, any
debts of an enterprise of a Contracting State to a resident of the
other Contracting State shall, for the purpose of determining the
taxable capital of such enterprise, be deductible under the same
conditions as if they had been contracted to a resident of the
first-mentioned State.
5.
Enterprises of a Contracting State, the capital of which is wholly or
partly owned or controlled, directly or indirectly, by one or more
residents of the other Contracting State, shall not be subjected in
the first-mentioned State to any taxation or any requirement
connected therewith which is other or more burdensome than the
taxation and connected requirements to which other similar
enterprises of the first-mentioned State are or may be subjected.
6.
The provisions of
this Article shall, notwithstanding the provisions of Article 2,
apply to taxes of every kind and description.
Article 25
MUTUAL AGREEMENT PROCEDURE
1.
Where a person considers that the actions of one or both of the
Contracting States result or will result for him in taxation not in
accordance with the provisions of this Convention, he may,
irrespective of the remedies provided by the domestic law of those
States, present his case to the competent authority of the
Contracting State of which he is a resident or, if his case comes
under paragraph 1 of Article 24, to that of the Contracting State of
which he is a national. The case must be presented within three
years from the first notification of the action resulting in
taxation not in accordance with the provisions of the Convention.
2.
The competent
authority shall endeavour, if the objection appears to it to be
justified and if it is not itself able to arrive at a satisfactory
solution, to resolve the case by mutual agreement with the competent
authority of the other Contracting State, with a view to the
avoidance of taxation which is not in accordance with the
Convention. Any agreement reached shall be implemented
notwithstanding any time limits in the domestic law of the
Contracting States.
3.
The competent
authorities of the Contracting States shall endeavour to resolve by
mutual agreement any difficulties or doubts arising as to the
interpretation or application of the Convention. They may also
consult together for the elimination of double taxation in cases not
provided for in the Convention.
4.
The competent
authorities of the Contracting States may communicate with each
other directly, including through a joint commission consisting of
themselves or their representatives, for the purpose of reaching an
agreement in the sense of the preceding paragraphs.
Article 26
EXCHANGE OF INFORMATION
1.
The competent
authorities of the Contracting States shall exchange such
information as is necessary for carrying out the provisions of this
Convention or of the domestic laws concerning taxes of every kind
and description imposed on behalf of the Contracting States, or of
their political subdivisions or local authorities, insofar as the
taxation thereunder is not contrary to the Convention. The exchange
of information is not restricted by Articles 1 and 2. Any
information received by a Contracting State shall be treated as
secret in the same manner as information obtained under the domestic
laws of that State and shall be disclosed only to persons or
authorities (including courts and administrative bodies) concerned
with the assessment or collection of, the enforcement or prosecution
in respect of, or the determination of appeals in relation to the
taxes referred to in the first sentence. Such persons or authorities
shall use the information only for such purposes. They may disclose
the information in public court proceedings or in judicial
decisions.
2.
In no case shall
the provisions of paragraph 1 be construed so as to impose on a
Contracting State the obligation:
a) to carry out
administrative measures at variance with the laws and administrative
practice of that or of the other Contracting State;
b) to supply information
which is not obtainable under the laws or in the normal course of
the administration of that or of the other Contracting State;
c) to supply information
which would disclose any trade, business, industrial, commercial or
professional secret or trade process, or information, the disclosure
of which would be contrary to public policy (ordre public).
Article 27
ASSISTANCE IN THE COLLECTION OF TAXES
1.
The Contracting
States shall lend assistance to each other in the collection of
revenue claims. This assistance is not restricted by Articles 1 and
2. The competent authorities of the Contracting States may by mutual
agreement settle the mode of application of this Article.
2.
The term "revenue
claim" as used in this Article means an amount owed in respect of
taxes of every kind and description imposed on behalf of the
Contracting States, or of their political subdivisions or local
authorities, insofar as the taxation thereunder is not contrary to
this Convention or any other instrument to which the Contracting
States are parties, as well as interest, administrative penalties
and costs of collection or conservancy related to such amount.
3.
When a revenue claim of a Contracting State is enforceable under the
laws of that State and is owed by a person who, at that time,
cannot, under the laws of that State, prevent its collection, that
revenue claim shall, at the request of the competent authority of
that State, be accepted for purposes of collection by the competent
authority of the other Contracting State. That revenue claim shall
be collected by that other State in accordance with the provisions
of its laws applicable to the enforcement and collection of its own
taxes as if the revenue claim were a revenue claim of that other
State.
4.
When a revenue claim of a Contracting State is a claim in respect of
which that State may, under its law, take measures of conservancy
with a view to ensure its collection, that revenue claim shall, at
the request of the competent authority of that State, be accepted
for purposes of taking measures of conservancy by the competent
authority of the other Contracting State. That other State shall
take measures of conservancy in respect of that revenue claim in
accordance with the provisions of its laws as if the revenue claim
were a revenue claim of that other State even if, at the time when
such measures are applied, the revenue claim is not enforceable in
the first-mentioned State or is owed by a person who has a right to
prevent its collection. In some countries, national law, policy or
administrative considerations may not allow or justify the type of
assistance envisaged under this Article or may require that this
type of assistance be restricted, e.g. to countries that have
similar tax systems or tax administrations or as to the taxes
covered. For that reason, the Article should only be included in the
Convention where each State concludes that, based on the factors
described in paragraph 1 of the Commentary on the Article, they can
agree to provide assistance in the collection of taxes levied by the
other State.
5.
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim
accepted by a Contracting State for purposes of paragraph 3 or 4
shall not, in that State, be subject to the time limits or accorded
any priority applicable to a revenue claim under the laws of that
State by reason of its nature as such. In addition, a revenue claim
accepted by a Contracting State for the purposes of paragraph 3 or 4
shall not, in that State, have any priority applicable to that
revenue claim under the laws of the other Contracting State.
6.
Proceedings with respect to the existence, validity or the amount of a
revenue claim of a Contracting State shall not be brought before the
courts or administrative bodies of the other Contracting State.
7.
Where, at any time after a request has been made by a Contracting
State under paragraph 3 or 4 and before the other Contracting State
has collected and remitted the relevant revenue claim to the
first-mentioned State, the relevant revenue claim ceases to be
a) in the case of a request
under paragraph 3, a revenue claim of the first-mentioned State that
is enforceable under the laws of that State and is owed by a person
who, at that time, cannot, under the laws of that State, prevent its
collection, or
b) in the case of a request
under paragraph 4, a revenue claim of the first-mentioned State in
respect of which that State may, under its laws, take measures of
conservancy with a view to ensure its collection the competent
authority of the first-mentioned State shall promptly notify the
competent authority of the other State of that fact and, at the
option of the other State, the first-mentioned State shall either
suspend or withdraw its request.
8.
In no case shall
the provisions of this Article be construed so as to impose on a
Contracting State the obligation:
a) to carry out
administrative measures at variance with the laws and administrative
practice of that or of the other Contracting State;
b) to carry out measures
which would be contrary to public policy (ordre public);
c) to provide assistance if
the other Contracting State has not pursued all reasonable measures
of collection or conservancy, as the case may be, available under
its laws or administrative practice;
d) to provide assistance in
those cases where the administrative burden for that State is
clearly disproportionate to the benefit to be derived by the other
Contracting State.
Article 28
MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS
Nothing in this Convention shall affect the fiscal privileges of
members of diplomatic missions or consular posts under the general
rules of international law or under the provisions of special
agreements.
Article 29
TERRITORIAL EXTENSION
1.
This Convention may be extended, either in its entirety or with any
necessary modifications [to any part of the territory of (State A)
or of (State B) which is specifically excluded from the application
of the Convention or], to any State or territory for whose
international relations (State A) or (State B) is responsible, which
imposes taxes substantially similar in character to those to which
the Convention applies. Any such extension shall take effect from
such date and subject to such modifications and conditions,
including conditions as to termination, as may be specified and
agreed between the Contracting States in notes to be exchanged
through diplomatic channels or in any other manner in accordance
with their constitutional procedures.
2.
Unless otherwise agreed by both Contracting States, the termination of
the Convention by one of them under Article 30 shall also terminate,
in the manner provided for in that Article, the application of the
Convention [to any part of the territory of (State A) or of (State
B) or] to any State or territory to which it has been extended under
this Article. The words between brackets are of relevance
when, by special provision, a part of the territory of a Contracting
State is excluded from the application of the Convention.
CHAPTER VII
FINAL PROVISIONS
Article 30
ENTRY INTO FORCE
1.
This Convention shall be ratified and the instruments of ratification
shall be exchanged at .......... as soon as possible.
2.
The Convention
shall enter into force upon the exchange of instruments of
ratification and its provisions shall have effect:
a) (in State A):
.......................................
b) (in State B):
.......................................
Article 31
TERMINATION
This Convention shall remain in force until terminated by a
Contracting State. Either Contracting State may terminate the
Convention, through diplomatic channels, by giving notice of
termination at least six months before the end of any calendar year
after the year ...... In such event, the Convention shall cease to
have effect:
a) (in State A):
.........................................
b) (in State B):
.........................................
TERMINAL CLAUSE
1.
The terminal clause
concerning the signing shall be drafted in accordance with the
constitutional procedure of both Contracting States.
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