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 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
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.
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