LegalizeResolução da Assembleia da República n.º 84/2000 — Aprova, para ratificação, a Convenção entre a República Portuguesa e os Estados Unidos Mexicanos 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 os Estados Unidos Mexicanos para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento e o Protocolo Anexo, assinados na Cidade do México em 11 de Novembro de 1999
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 where the payer is 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 obligation to pay the royalties was incurred, and such royalties are borne by that 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 paid, having regard to the use, right or information for which they are paid, exceeds, for whatever reason, 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 enterprise is situated.
4 - In addition to gains taxable in accordance with the provisions of the preceding paragraphs of this article, gains derived by a resident of a Contracting State from the alienation of stock, participation, or other rights in the capital of a company or other legal person which is a resident of the other Contracting State may be taxed in that other Contracting State if the recipient of the gain, held during the period of twelve months preceding such alienation, at any time, a participation directly or indirectly, of at least 25% in the capital of that company or other legal person.
5 - Gains from the alienation of shares or other rights of a company which assets consist principally, directly or indirectly, of immovable property situated in a Contracting State or any other right pertaining to such immovable property, may be taxed in that State. For the purposes of this paragraph immovable property used by a company in its industrial, commercial or agricultural activities or in the conduct of professional services shall not be taken into account.
6 - Gains from the alienation of any property other than that referred to in paragraphs 1, 2, 3, 4 and 5 shall be taxable only in the Contracting State of which the alienator is a resident.
Article 14
Independent personal services
1 - Income derived by 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 except in the following circumstances, when such income may also be taxed in the other Contracting State:
Where the resident has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities but only so much of the income as is attributable to that fixed base; or
Where the resident, being an individual, is present in the other Contracting State for a period or periods amounting to or exceeding in the aggregate 183 days in any twelve-month period commencing or ending in the fiscal year concerned; in that case only so much of the income as is derived from his activities performed in that other State may be taxed in that other State.
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, 20 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, in the case of Portugal, in his capacity as a member of a «conselho fiscal» or as a «fiscal único» or, in the case of Mexico, in his capacity of «administrador» or «comisario», of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17
Artistes and sportspersons
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 sportsperson, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State. Income referred to in this paragraph shall include income derived from any personal activities performed in the other Contracting State by such resident relating to his reputation as an entertainer or sportsperson, where such activities have a direct link with his personal activities as an artist or a sportsperson.
2 - Where income in respect of personal activities exercised by an entertainer or a sportsperson in his capacity as such accrues not to the entertainer or sportsperson 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 sportsperson are exercised.
3 - Notwithstanding other provisions of the Convention, income derived by a resident of a Contracting State from the performance of independent personal services, the direct use, letting or use in any other form of goods, connected to the personal activities exercised by an entertainer or a sportsperson in his capacity as such shall be considered as income derived by the entertainer or sportsperson for the purposes of this article, unless the entertainer or sportsperson demonstrates that he nor person related thereto participates directly or indirectly in the income of that resident in any manner, including the receipt of deferred remuneration, bonnuses, fees, dividends or other distributions.
4 - Paragraphs 1 and 2 shall not apply to income derived by a resident of a Contracting State from activities exercised in the other Contracting State if the visit to that other State is supported wholly or mainly by public funds of the first-mentioned State, a political or administrative subdivision or a local authority thereof, or takes place under a cultural agreement or arrangement between the Governments of the Contracting States. In such a case, the income shall be taxable only in the Contracting State of which the entertainer or sportsperson is a resident.
Article 18
Pensions
1 - Subject to the provisions of paragraph 2 of article 19, pensions, annuities and other similar remuneration paid to a resident of a Contracting State in consideration of past employment shall be taxable only in that State.
2 - The term «annuity» means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under a commitment with an obligation to make the payments in return for adequate and full consideration in money or money's worth.
Article 19
Government service
1 - a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State, 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
Teachers and researchers
1 - An individual who is a resident of a Contracting State immediately before visiting the other Contracting State and who, at the invitation of the Government of the other Contracting State or of a university or other accredited educational institution or recognized scientific research institution of that other Contracting State, or under an official program of cultural exchange, visits that other State solely for the purpose of teaching or carrying out research at such a university or educational institution shall be exempt from tax in the other Contracting State on his remuneration from such activity for a period not exceeding two years from the date of his arrival in the other State.
2 - This article shall not apply to income from research if such research is undertaken not in the public interest but primarily for the private benefit of a specific person or persons.
Article 21
Students and trainees
Payments which a student or trainee 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 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 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, 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 - Notwithstanding the provisions of paragraphs 1 and 2, 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 be taxed in that other State.
Article 23
Elimination of double taxation
1 - In accordance with the provisions and subject to the limitations of the laws of Mexico, as may be amended from time to time without changing the general principle hereof, Mexico shall allow its residents as a credit against the Mexican tax:
The Portuguese tax paid on income arising in Portugal, in an amount not exceeding the tax payable in Mexico on such income; and
In the case of a company owning at least 10% of the capital of a company which is a resident of Portugal and from which the first-mentioned company receives dividends, the Portuguese tax paid by the distributing company with respect to the profits out of which the dividends are paid.
2 - In the case of Portugal, double taxation shall be avoided as follows:
Where a resident of Portugal derives income which, in accordance with the provisions of this Convention, may be taxed in Mexico, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Mexico.
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 Portugal;
Where in accordance with any provisions 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;
In the case of a Portuguese company that receives dividends from a Mexican company subject to tax and not exempt the capital of which it holds directly a participation of at least 25%, Portugal shall allow a deduction for 95% of such dividends included in the tax base, provided that such participation was held for the preceding two years, or from the date of the organization of the Portuguese company if that occurred later, but in either case only if the participation was held continuously throughout that period.
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 - 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.
4 - 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.
5 - 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.
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.
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.
5 - Notwithstanding any other treaty, agreement or convention to which the Contracting States are parties, any tax issue between the Contracting States, including a dispute over whether this Convention applies, shall be settled only under this article unless the competent authorities agree otherwise.
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) involved in 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.
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 (ordre 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
Entry into force
1 - The Contracting States shall notify each other in writing, through diplomatic channels that the procedures required by its law for the entry into force of this Convention have been satisfied. The Convention shall enter into force on the date of receipt of the last notification.
2 - The Convention shall enter into force on the date of the latter of the notifications referred to in paragraph 1 and its provisions shall apply:
In respect of taxes withheld at source, the fact giving rise to them appearing on or after the first day of January in the year next following the year in which this Convention enters into force;
In respect of other taxes, as to income arising in the fiscal year beginning on or after the first day of January in the year next following the year in which this Convention enters into force.
Article 29
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 beginning after the expiration of a period of five years from the date of its entry into force. In such event the Convention shall cease to have effect:
In respect of taxes withheld at the source, the fact giving rise to them appearing on or after the first day of January next following the date on which the period specified in the said notice of termination expires;
In respect of other taxes as to income arising in the fiscal year beginning on or after the first day of January next following the date on which the period specified in the said notice of termination expires.
In witness whereof the undersigned, duly authorized thereto, have signed this Convention.
Done at Ciudad de México, on 11th November 1999, in duplicate in the Portuguese, Spanish and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
For the Portuguese Republic:
([ver documento original](https://files.diariodarepublica.pt/1s/2000/12/288a00/72547285.pdf))
For the United Mexican States:
([ver documento original](https://files.diariodarepublica.pt/1s/2000/12/288a00/72547285.pdf))
PROTOCOL
Ad article 2
It is understood that in the case of Mexico, the provisions of article 2 shall not apply to taxes on income imposed by its political subdivisions or local authorities.
If Mexico introduces taxes on income imposed by its political subdivisions or local authorities, Mexico shall notify the competent authorities of Portugal in a timely manner and Portugal may request consultations with a view to restoring the balance of the benefits of the Convention, if necessary.
Ad article 4
It is understood that notwithstanding the provisions of this Convention, tax reductions or exemptions under articles 8, 11, 12 and 13 of this Convention shall not apply to any person that is a resident of a Contracting State that is entitled to income tax benefits on foreign source income under the law of that Contracting State. However, such person may be subject to tax in the other Contracting State at a rate that shall not exceed 30% of the gross amount of the royalties, interest or capital gains, provided that such person is the beneficial owner of such royalties, interests or capital gains, and is a company which is a resident of the first mentioned Contracting State, the capital of which is held, directly or indirectly, for more than 70% by shareholders residents of the first mentioned Contracting State and that no more than 20% of the company's gross income consists of passive income, including dividends, interests, royalties or capital gains.
Ad article 7
In respect of paragraph 3, it is understood that no such deductions shall be allowed in respect of such amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head-office of the enterprise or any of its other offices by way of royalties, fees or other similar payments in return for the use of patents or other rights, by way of commission, for specific services performed or for management, or except in the case of a bank, by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head-office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, by way of commission, for specific services performed or for management, or except in the case of a bank, by way of interest on moneys lent to the head-office of the enterprise or any of its other offices.
Ad article 8
For the purposes of this article profits from the operation of ships or aircraft in international traffic include profits derived from the rental of ships or aircraft on a full (time or voyage) basis. They also include profits from the rental of ships or aircraft on a bareboat basis if such rental profits are accessory to profits described in paragraph 1.
Ad article 10
Although the substitute gift and inheritance tax (imposto sobre sucessões e doações por avença) imposed by Portugal is in fact a gift and inheritance tax and not an income tax, it is agreed that if the rate of such tax is increased above the rate applicable on the date of signature of this Convention, such increase shall not apply to dividends beneficially owned by residents of Mexico. It is understood that shares that have been subject to the substitute gift and inheritance tax are not subject to taxes imposed by Portugal upon transfer by death or gift.
Ad article 10, paragraph 3
The term «dividens» also includes profits attributed under an arrangement for participation in profits (associação em participação/associación en participación).
Ad article 11, paragraph 6
For the purposes of the provisions in the second part of paragraph 6 of article 11, if the loan is incurred by the head-office of the enterprise and the amount in question affects several permanent establishments or fixed bases situated in different countries, then the interest shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated, but only so much of the interest payment as is borne by such permanent establishment or fixed base.
Ad articles 11 and 12
The provisions of paragraphs 2 and 3 of article 11 and of paragraph 2 of article 12 shall not apply if the debt-claim in respect of which the interest is paid was agreed upon or the contract in respect of which the payment of royalties is made was entered into primarily with the objective to take advantage of these provisions and not for valid economic reasons. Where a Contracting State resolves to deny the benefit of said provisions to a resident of the other Contracting State, the competent authority of the first-mentioned State should reach an agreement with the competent authority of the other State.
Ad article 12, paragraph 3
For the purposes of this paragraph, the term «royalties» shall also include the reception or the right to receive, as well as the use or the right to the use in connection with television or broadcasting, visual images, sounds, or both, transmitted to the public either by satellite, cable, optic fibre or similar technology.
Ad article 12, paragraph 5
For the purposes of the provisions in the second part of paragraph 5 of article 12, where the obligation to pay the royalties is incurred by the head-office of the enterprise and the right or property in respect of which they are paid is effectively connected with several permanent establishments or fixed bases situated in different countries, then the royalties shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated, but only so much of the royalty payment as is borne by such permanent establishment or fixed base.
Ad article 17
It is understood that paragraph 3 of article 17 is meant to apply to cases where an artist or sportsperson resident of a Contracting State derives income from his personal activities indirectly, through another person, under other categories of income. This income shall fall under the scope of this article, since it is closely connected with his personal activities as such in the other Contracting State.
Ad article 23, paragraph 2, subparagraph c)
Notwithstanding this provision, if in the future Portugal changes its internal law and adopts a different method for the elimination of economical double taxation, this new method will be applied for the purposes of this Convention.
Ad article 24
It is understood that the provisions of paragraph 3 shall not be interpreted so as to prevent the application by a Contracting State of the thin capitalization provisions provided for in its domestic law, except in those cases in which the associated enterprises can prove that due to the special characteristics of their activities or their specific economic circumstances, the conditions made or imposed between these enterprises are in conformity with the arm's length principle.
Ad article 26
It is understood that the competent authorities may use the information exchanged under article 26 for the assessment of income taxes for value added tax purposes.
In witness whereof, the undersigned duly authorised thereto have signed this Protocol.
Done at Ciudad de México, on 11 th November 1999, in duplicate in the portuguese, spanish and english languages, all texts being equally authentic. In case of any divergence of interpretation, the english text shall prevail.
For the Portuguese Republic:
([ver documento original](https://files.diariodarepublica.pt/1s/2000/12/288a00/72547285.pdf))
For the United Mexican States:
([ver documento original](https://files.diariodarepublica.pt/1s/2000/12/288a00/72547285.pdf))
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