Resolução da Assembleia da República n.º 11/2002 — Aprova, para ratificação, a Convenção entre a República Portuguesa e a República de Malta para Evitar a Dupla…

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

Entertainers and sportsmen

1 - Notwithstanding the provisions of articles 7, 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 and social security payments

1 - 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.

2 - Notwithstanding the provisions of paragraph 1, pensions paid and other payments made under the social security legislation of a Contracting State may be taxed 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.

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.

3 - The provisions of articles 15, 16 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 and business apprentices

A student or business apprentice who is present in a Contracting State solely for the purpose of his education or training and who is, or immediately before being so present was, a resident of the other Contracting State, shall be exempt from tax in the first-mentioned State on payments received from outside that first-mentioned State for the purposes of his maintenance, education or training.

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, 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.

CHAPTER IV

Elimination of double taxation

Article 22

Elimination of double taxation

1 - In the case of Portugal double taxation shall be eliminated as follows:

2 - In the case of Malta, double taxation shall be eliminated as follows:

Subject to the provisions of the law of Malta regarding the allowance of a credit against Malta tax in respect of foreign tax, where, in accordance with the provisions of this Convention, there is included in a Malta assessment income from sources within Portugal the Portuguese tax on such income shall be allowed as a credit against the relative Malta tax payable thereon.

3 - For the purpose of allowance as a credit the tax payable in Portugal or Malta, as the context requires, shall be deemed to include the tax which is otherwise payable in a Contracting State but has been reduced or waived temporarily by that State under its legal provisions for tax incentives relating to economic development.

The provisions of this paragraph shall apply for the first seven years during which this Convention is applicable. This period may be extended by mutual agreement between the competent authorities.

The competent authorities shall also consult each other with a view to identifying the tax incentives applicable in both Contracting States which may qualify for the purpose of this paragraph.

4 - Where the Convention provides that income arising in a Contracting State shall be relieved from tax in that State, either in full or in part, and, under the law in force in the other Contracting State, such income is subject to tax by reference to the amount thereof which is remitted to or received in that other State and not by reference to the full amount thereof, then the relief to be allowed in the first-mentioned State shall apply only to such portion of the income as is remitted to or received in the other State.

CHAPTER V

Special provisions

Article 23

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 oh 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, relieves 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 which are the subject of this Convention.

Article 24

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 23, 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 25

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 Sate 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.

2 - In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:

Article 26

Members of diplomatic missions and consular posts

Nothing in this Convention shall effect 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 27

Limitation of relief

The provisions of this Convention shall not apply to persons entitled to any special tax benefit under:

CHAPTER VI

Final provisions

Article 28

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.

2 - This Convention shall enter into force 30 days after the date of the latter of the notifications referred to in paragraph 1 and its provisions shall have effect:

ii) In respect of other taxes as to income arising in any 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:

ii) 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, being duly authorised thereto by their respective Governments, have signed this Convention.

Done at Lisbon this 26th day of January 2001, in duplicate in the Portuguese and English languages, both texts being equally authentic.

For the Government of the Portuguese Republic:

(ver assinatura no documento original)

For the Government of the Republic of Malta:

(ver assinatura no documento original)

PROTOCOL

At the moment of signature of the Convention, between the Government of the Portuguese Republic and the Government of the Republic of Malta, for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, both parties have agreed upon the following provisions, which form an integral part of the Convention.

1 - Ad article 2

Notwithstanding the other provisions of this article, the Convention shall not apply to tax paid or payable in Malta in accordance with the provisions of subsection (13) of section 56 of the income tax act (cap. 123) concerning the chargeable income of any person engaged in the production of petroleum produced in Malta or any substantially similar provision which is imposed after the date of signature of the Convention.

2 - Ad article 10

«Dividends», under the Malta law in force, income tax paid by a company as is referable to that part of its profits which is distributed by way of dividends, is assimilated with the personal income tax of the shareholder in receipt of such a dividend. In the shareholder's hands, the dividend is charged to tax after being grossed up with the tax paid by the company on the profits out of which such dividend is paid and the relevant amount of tax, so assimilated, is set off against the shareholder's tax liability on his income from all sources liable to tax.

With reference to article 14, it is understood that paragraph 2(b) thereof shall be applicable only so long as the above systems continues in force. If this will be changed the rate of tax referred to in paragraph 2(a) shall apply in Malta in relation to the dividends paid by a company which is a resident of Malta to a resident of Portugal.

3 - Ad article 13

With reference to article 13, it is understood that the term «gains» includes income.

4 - Ad article 14

In relation to income referred to in paragraph 1, it may be taxed in the other Contracting State if the remuneration for the services performed in that other State is derived from residents of the first mentioned State and exceeds the equivalent of 30000 United States dollars during the fiscal year.

5 - Ad article 23

The provisions of paragraph 3 do not hinder the application of any provision of the tax law of a Contracting State concerning the deduction of interest which is in force at the date of signature of this Convention (there being included any future modification of the provisions that do not change the general nature).

6 - The provisions of this Convention shall not be interpreted as limiting in any way the exemptions, deductions, credits or other relieves that are or will be granted:

For the Government of the Portuguese Republic:

(ver assinatura no documento original)

For the Government of the Republic of Malta:

(ver assinatura no documento original)