Resolução da Assembleia da República n.º 62/2000 — Aprova, para ratificação, a Convenção entre a República Portuguesa e o Reino dos Países Baixos para Evitar a Dupla…

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For the Kingdom of the Netherlands:

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Protocol

At the moment of signing the Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, this day concluded between the Portuguese Republic and the Kingdom of the Netherlands, the undersigned have agreed that the following provisions shall form an integral part of the Convention.

I - Ad article 2

1 - It is understood that the term taxes on the total amount of wages or salaries does not include social security premiums.

2 - It is understood that this Convention shall also apply to any tax that for the purpose of an EC-directive, - regulation or - convention is considered to be a tax on income, on elements of income, on capital or elements of capital.

3 - Shall Portugal introduce a tax similar to the Netherlands tax on capital, the competent Portuguese authority shall inform by diplomatic channel the competent Netherlands authority in order that they may consult each other to reach an agreement on, if and in what whay the Convention is to be extended to such tax.

II - Ad article 4

1 - An individual living aboard a ship without any real domicile in either of the Contracting States shall be deemed to be a resident of the Contracting State in which the ship has its home harbour.

2 - A pension fund recognised as such in a Contracting State and of which the income is generally exempt from tax in that State, shall be regarded as a resident of that State. As a recognised pension fund of a Contracting State shall be considered any pension fund recognised and controlled according to statutory provisions of that State.

3 - Residents of a Contracting State which benefit from a favourable tax treatment shall not be entitled to the benefits of chapter III of this Convention in so far as domestic transactions comparable to the transactions to which this favourable tax treatment is applicable are excluded from this favourable tax treatment (ring fenced).

4 - Residents of a Contracting State which benefit from tax measures which are harmful within the meaning of the EC-Code of conduct for business taxation, as agreed by the ECOFIN-meeting of December 1, 1997, shall not be entitled to the benefits of chapter III of this Convention.

5 - However, tax measures referred to in paragraphs 3 and 4 above shall not be considered harmfull if they are accepted and to the extent they are authorised by the European Community as an appropriate support for the economic development of a particular area and do not undermine the integrity and coherence of the Community legal order, including the internal market and common policies.

III - Ad articles 5, 6, 13 and 23

It is understood that exploration and exploitation rights of natural resources shall be regarded as immovable property situated in the Contracting State the sea-bed and subsoil of which they are related to, and that these rights shall be deemed to pertain to the property of a permanent establishment in that State. Furthermore, it is understood that the aforementioned rights include rights to interests in, or to the benefits of, assets to be produced by such exploration or exploitation.

IV - Ad article 6

The provisions of article 6 shall also apply to income from movable property, or income derived from services connected with the use or the right to use the immovable property, either of which, under the taxation law of the Contracting State in which the property in question is situated, is assimilated to income from immovable property.

V - Ad article 7

According to article 7, only those profits may be attributed to a building site, a construction or assembly project or the furnishing of services, as meant in subparagraph b) of paragraph 3 of article 5, which constitutes a permanent establishment, as are resulting from the actual building or assembly activities or the aforementioned furnishing of services. Consequently, where in connection whith these activities or services or independently thereof, machinery or equipment is supplied by the head-office or another permanent establishment of the enterprise or by third persons, then the value of such supply shall not be attributed to the profits of the building site, construction or assembly project or the furnishing of services.

VI - Ad articles 7, 12 and 14

Subject to paragraph 4 of article 12, payments received as a consideration for technical services, including studies or surveys of a scientific, geological or technical nature, or for consultancy or supervisory services shall be deemed to be payments to which the provisions of article 7 ou article 14 apply.

VII - Ad article 8

For the purposes of article 8, profits derived from the operation in international traffic of ships and aircraft include profits derived from the rental on a bareboat basis of ships and aircraft if operated in international traffic if such rental profits are incidental to the profits described in paragraph 1 of article 8.

VIII - Ad articles 8, 13 and 23

It is understood, where companies that are resident of either one of the Contracting States or of a third State have agreed to carry on an air transportation business together in the form of a consortium, the provisions of article 8, paragraph 3 of article 13 and paragraph 3 of article 23 shall apply to such part of the profits of the consortium from the operation of aircraft in international traffic and of the capital of such consortium as corresponds to the participation held in that consortium by a company that is a resident of a Contracting State.

IX - Ad article 9

In respect of paragraph 1 of article 9, it is understood that the fact that associated enterprises have concluded arrangements, such as costsharing arrangements or general services agreements, for or based on the allocation of executive, general administrative, technical and commercial expenses, research and development expenses and other similar expenses, is not in itself a condition as meant in that paragraph.

X - Ad articles 9 and 26

It is understood that the provisions of the Convention shall not be interpreted so as to prevent the application by a Contracting State of the thin capitalization provided for in its domestic law, except in those cases in which the associated enterprises can show that due to the special characteristics of their activities or their specific economic circumstances, the conditions made or imposed between those enterprises are in conformity with the arm's length principle.

XI - Ad article 10

The term «dividends» shall understood to include any income from rights to participate in the profits of an enterprise of a Contracting State, as far as these rights do not result from a shareholding or from dependent or independent personal services.

XII - Ad articles 10, 11 and 12

Where tax has been levied at source in excess of the amount of tax chargeable under the provisions of articles 10, 11 and 12, applications for the refund of the excess amount of tax have to be lodged with the competent authority of the State having levied the tax, within a period of three years after the expiration of the calendar year in which the tax has been levied.

XIII - Ad articles 10 and 13

It is understood that income received in connection with the (partial) liquidation of a company or a purchase of own shares by a company is treated in the Netherlands as income from shares and not as capital gains.

XIV - Ad article 12

Royalties received in consideration for the use of, or the right to use, containers in international traffic shall be taxable only in the Contracting State of which the beneficial owner is a resident.

XV - Ad article 16

It is understood that conselho de administração or conselho fiscal of a Portuguese company and bestuurder or commissaris of a Netherlands company means persons who are nominated as such by the general meeting of shareholders or by any other competent body of such company and are charged with the general management of the company and the supervision thereof, respectively.

XVI - Ad article 18

With respect to subparagraph b) of paragraph 2 of article 18, it is understood that the generally applicable tax allowance that may be deducted from the tax base in Portugal on a pension or other similar remuneration or annuity, is not by itself a circumstance to conclude that a pension or other similar remuneration or annuity is not taxed at the generally applicable rate for income from dependent personal services, or that less than 90 per cent of the gross amount of the pension or other similar remuneration or annuity is taxed.

XVII - Ad article 24

It is understood that for the computation of the reduction mentioned in paragraph 3 of article 24, the items of capital referred to in paragraph 1 of article 23 shall be taken into account for the value thereof reduced by the value of the debts secured by mortgage on that capital and the items of capital referred to in paragraph 2 of article 23 shall be taken into account for the value thereof reduced by the value of the debts pertaining to the permanent establishment or fixed base.

In witness whereof, the undersigned, duly authorised thereto, have signed this Protocol.

Done at Oporto this 20th day of September 1999, in duplicate, in the Portuguese, Netherlands and English languages, the three texts being equally authentic. In case there is any divergence of interpretation between the Portuguese and Netherlands texts, the English text shall prevail.

For the Portuguese Republic:

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For the Kingdom of the Netherlands:

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