LegalizeResolução da Assembleia da República n.º 68/97 — Aprova, para ratificação, a Convenção entre a República Portuguesa e a República da Venezuela para Evitar a Dupla…
Este é o ato tal como foi publicado. As alterações posteriores não estão incorporadas no texto: cada uma é um ato autónomo neste repositório e uma entrada no historial desta lei.
Aprova, para ratificação, a Convenção entre a República Portuguesa e a República da Venezuela para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento e respectivo Protocolo, assinados em Lisboa em 23 de Abril de 1996
In the case of fees for technical assistance, 10 percent of the gross amount of the fees for technical assistance.
3 - 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, and films or tapes for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
The term «royalties» also comprises payments received as a consideration for technical assistence in connection with the use or the right to use any copyright, goods or information to which this paragraph applies.
4 - The provisions of paragraphs 1 and 2 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, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of article 7 or article 14, as the case may be, shall apply.
5 - Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political or administrative subdivision, a local authority or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base 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 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 or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State.
3 - Gains from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft shall be taxable only in the Contracting State in which the place of effective management of the entreprise is situated.
4 - Gains from the alienation of shares or other rights in a company which assets principally, directly or indirectly, consist of immovable property situated in a Contracting State or rights pertaining to such immovable property, may be taxed in that State.
5 - Gains from the alienation of shares, other than those sold through a recognized stock exchange of the Contracting State, that represent a participation of more than 25 percent of the stock of a company resident of a Contracting State may be taxed in that State.
6 - Gains from the alienation of any property other than that referred to in the preceding paragraphs, shall be taxable only in the Contracting State of which the alienator is a resident.
Article 14
Independent personal services
1 - Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State. However, such income may also be taxed in the other Contracting State if:
The individual has a fixed base regularly available to him in that other State for the purpose of performing his activities, but only so much thereof as is attributable to that fixed base; or
The remuneration for his activities in the other Contracting State is paid by or on behalf of a resident of the other Contracting State or is borne by a permanent establishment or a fixed base situated in that Contracting State and exceeds in the fiscal year a gross amount equivalent to US$ 20,000.
2 - The term «professional services» includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
Article 15
Dependent personal services
1 - Subject to the provisions of articles 16, 18, 19 and 21, 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:
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
The remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and
The remuneration is not borne by a permanent establishment or a fixed base 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 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 or any similar body 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 14 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, 14 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 or administrative 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.
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:
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 or administrative 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.
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 or administrative 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 in an officialy recognized institution 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
Professors and researchers
1 - An individual who is or was a resident of a Contracting State immediately before visiting the other Contracting State, solely for the purposes of teaching or scientific research at an university, college, school, or other similar educational or scientific research institution which is recognised as non-profitable by the Government of that other State, or under an official programme of cultural exchange, for a period not exceeding two years from the date of his first arrival in that other State, shall be exempt from tax in that other State on his remuneration for such teaching or research.
2 - The preceding provision of this article shall also apply to an individual who carries out research within the scope of a scholarship granted by a government, religious, charitable, scientific, literary or educational organization, if such scholarship is exempt from tax.
Article 22
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 may be taxed 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, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of article 7 or article 14, as the case may be, shall apply.
3 - However, items of income of a resident of a Contracting State not dealt with in the foregoing articles of this Convention and arising in the other Contracting State may also be taxed in that other State.
CHAPTER IV
Methods for the elimination of double taxation
Article 23
Elimination of double taxation
1 - In the case of a resident of Portugal, double taxation shall be eliminated as follows:
Where a resident of Portugal derives income which, in accordance with the provisions of this Convention, may be taxed in Venezuela, the Portuguese Republic shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Venezuela; such deduction shall not, however, exceed that part of the income tax as computed before the deduction is given, which is attributable to the income which may be taxed in Venezuela; and
Where in accordance with any provision of the Convention income derived by a resident of Portugal is exempt from tax in this State, Portugal may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
2 - In the case of a resident of Venezuela, double taxation shall be eliminated as follows: where a resident of Venezuela derives income which, in accordance whith the provisions of this Convention, may be taxed in Portugal, such income shall be exempt from Venezuelan tax.
CHAPTER V
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 - 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.
3 - 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 subject 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.
4 - 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 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.
3 - The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any dificulties 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 of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by article 1. 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 covered by the Convention. 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. The competent authorities shall, through consultation, develop appropriate conditions, methods and techniques concerning the matters in respect of which such exchanges of information shall be made, including, where appropriate, exchanges of information regarding tax avoidance.
2 - In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
To carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
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;
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 (order public).
Article 27
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 28
Other provisions
1 - The provisions of this Convention shall not be construed as restricting in any way the exemptions, allowances, deduction, credits or other reliefs which are or may be granted:
Under the laws of a Contracting State for the purpose of determining the tax levied by such State; or
Under any special agreement concluded by a Contracting State.
2 - The competent authorities of both Contracting States shall endeavour to solve the cases of undue use of this Convention.
CHAPTER VI
Final provisions
Article 29 Entry into force
1 - The Contracting States shall notify each other that the constitutional requirements for the entry into force of this Convention have been complied with. The Convention shall enter into force thirty days after the date of the latter of the notifications.
2 - This Convention shall apply:
In respect of taxes withheld at source, the fact giving rise to them appearing on or after the first day of January of the year next following the year in which this Convention enters into force;
In respect of other taxes, as to income arising in any fiscal year beginning on or after first day of January in the year next following the year in which this Convention enters into force.
3 - The Convention between the Contracting States for the Avoidance of Double Taxation of Air Transport Enterprises, signed in Caracas on 29th May 1978 shall cease to have effect in respect of taxes concerning any period of time to which this Convention shall apply regard to such taxes.
Article 30
Termination
This Convention shall remain in force indefinitely but either of the Contracting States may, on or before the thirtieth day of June in any calendar year from the third year following that in which the notifications have been given, terminate the Convention through diplomatic channels. In such event, this Convention shall cease to have effect:
In respect of taxes withheld at source, the fact giving rise to them appearing on or after the first day of January of the year next following the date on which the period specified in the said notice of termination expires; and
In respect of other taxes, as to income arising in the fiscal year beginning on or after first day of January next following the date on which the period specified in said notice of termination expires.
In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Convention.
Done at this day of 23th April 1996, in Lisbon in duplicate in the Portuguese, Spanish and English languages, all texts being equally authentic. In case of divergency of interpretation, the English text shall prevail.
For the Government of the Portuguese Republic:
Jaime José Matos da Gama, Minister for Foreign Affairs.
For the Government of the Republic of Venezuela:
Miguel Angel Burelli Rivas, Minister for Foreign Affairs.
PROTOCOL
At the moment of signature of the Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income concluded this day between the Government of the Portuguese Republic and the Government of the Republic of Venezuela, the undersigned have agreed upon the following additional provisions, which form an integral part of the Convention:
Ad. article 2
If for any reason the Republic of Venezuela is able to exempt the payment of the tax on industrial and commercial patent or a similar tax, such tax would be covered automatically by this Convention. The National Government of Venezuela undertakes to do its best efforts to reach an agreement with Venezuelan local authorities for the purpose of securing an exemption to Portuguese persons of the tax on industrial and commercial patent to meet the general commitment undertaken by both Contracting States to avoid double taxation. Portugal reserves the right to exclude its local taxes from the scope of this Convention if Venezuelan local authorities impose the tax on industrial and commercial patent or similar tax on enterprises from such Contracting State. The competent authorities shall endeavor to resolve by the mutual agreement procedure any dispute arising from the application of this provision.
Ad. article 4
It is understood that if Venezuela changes its present territorial tax system to a world-wide system of taxation the term «resident of a Contracting State» shall mean 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 or admistrative subdivisions 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.
Ad. article 7
1 - With respect to paragraphs 1 and 2 of article 7, where an enterprise of a Contracting State sells merchandise or exercises an activity in the other Contracting State through a permanent establishment situated therein, the profits of such permanent establishment shall not be determined on the basis of the total amount derived by the enterprise, but only on the basis of the remuneration attributable to the activity which is effectively carried out by the permanent establishment in connection wiht the sales or activities. Especially in the case of contracts for the survey, supply, installation or construction of industrial, commercial or scientific equipment or premises, or of public works, when the enterprise has a permanent establishment, the profits of such permanent establishment shall not be determined on the basis of the total amount of the contract, but only on the basis of that part of the contract which is effectively carried out by that permanent establishment in the State in which it is situated. The provisions of this paragraph shall not preclude the application of article 12 whenever there are cases of mixed contracts involving sales or activities with transfer of know-how. In these cases, only the appropriate portion concerning such payments shall be considered in the application of that article.
2 - With respect to paragraph 3, the term «expenses which are incurred for the purposes of the permanent establishment» shall be construed as expenses directly related to the activity of such permanent establishment.
3 - In the case of Venezuela the provision of paragraph 3 would only be applied if Venezuela changes its territorial tax system to a world-wide system of taxation. Meanwhile, for the purposes of the determination of the taxable profit of a permanent establishment, interest, royalties and other disbursements may be deducted in the same terms and conditions as if they had been incurred by a resident enterprise.
Ad. article 8
The amount of tax to be levied in accordance with paragraph 4 shall not in any case be higher than that provided under the tax legislation of the Contracting State in force at the time of signature of this Convention.
Ad. article 14
The Contracting States agree that in case Venezuela or Portugal agree to an amount different from that established in paragraph 1, b), they will undertake to revise the terms of article 14 to avoid any discriminatory treatment for residents of both Contracting States.
Ad. article 23
Notwithstanding paragraph 2 of article 23, in case Venezuela adopts a world-wide basis of taxation, double taxation shall be eliminated as follows:
Where a resident of Venezuela derives income which, in accordance with the provisions of this Convention, may be taxed in Portugal, Venezuela shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Portugal; such deduction shall not, however, exceed that part of the income tax, as computed before the deduction in given, which is attributable to the income which may be taxed in Portugal; and
Where in accordance with any provision of the Convention, income derived by a resident of Venezuela is exempt from tax in this State, Venezuela may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
Ad. article 24
1 - Except where the provisions of paragraph 1 of article 9, paragraph 7 of article 11, or paragraph 6 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. In the case of Venezuela, this provision would only be applied if Venezuela changes its territorial tax system to a world-wide system of taxation.
2 - The provisions of article 24 do not preclude the application of any provision of the tax law of a Contracting State dealing with thin capitalization problems.
3 - The provisions of article 24 shall be construed in the sense that insofar as the deductibility of the incurred disbursements is concerned, each Contracting State may apply its own procedures regarding the burden of proof.
In witness whereof, the undersigned duly authorised thereto, have signed this Protocol.
For the Government of the Portuguese Republic:
Jaime José Matos da Gama, Minister for Foreign Affairs.
For the Government of the Republic of Venezuela:
Miguel Angel Burelli Rivas, Minister for Foreign Affairs.
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