LegalizeResolução da Assembleia da República n.º 47/2004 — Aprova a Convenção entre a República Portuguesa e a República da Estónia para Evitar a Dupla Tributação e Prevenir a…
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 a Convenção entre a República Portuguesa e a República da Estónia para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento e o Protocolo Adicional a ela anexo, assinados em Tallin em 12 de Maio de 2003
2 - The provisions of paragraph 1 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 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 also be taxed in that other State.
Article 23
Elimination of double taxation
The double taxation shall be eliminated as follows:
1) In Portugal:
Where a resident of Portugal derives income which, in accordance with the provisions of this Convention may be taxed in Estonia, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Estonia. 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 Estonia;
Where in accordance with any provision of the Convention income derived by a resident of Portugal is exempt from tax in Portugal, Portugal may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income;
2) In Estonia:
Where a resident of Estonia derives income which, in accordance with this Convention, may be taxed in Portugal, unless a more favourable treatment is provided in its domestic law, Estonia shall allow as a deduction from the tax on the income of that resident, an amount equal to the income tax paid thereon in Portugal. Such deduction shall not, however, exceed that part of the income tax in Estonia, as computed before the deduction is given, which is attributable to the income which may be taxed in Portugal;
For the purposes of sub-paragraph a), where a company that is a resident of Estonia receives a dividend from a company that is a resident of Portugal in which it owns at least 10% of its shares having full voting rights, the tax paid in Portugal shall include not only the tax paid on the dividend, but also the appropriate portion of the tax paid on the underlying profits of the company out of which the dividend was paid.
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. 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 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.
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
Limitation of benefits
The provisions of this Convention shall not be construed as obliging a Contracting State to grant the benefits under this Convention to any person that is a resident of the other Contracting State, if, according to the competent authorities of both Contracting States, the receipt of those benefits will constitute an abuse of the general principles of the Convention.
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
Entry into force
Each of the Contracting States shall notify the other of the completion of the procedures required by its law for the bringing into force of this Convention. The Convention shall enter into force on the date of the later of these notifications and shall thereupon have effect:
In Portugal:
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;
ii) In respect of other taxes, as to income arising in a 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;
In Estonia:
In respect of taxes withheld at source, on income derived on or after the first day of January in the calendar year next following the year in which the Convention enters into force;
ii) In respect of other taxes on income, for taxes chargeable for any fiscal year beginning on or after the first day of January in the calendar year next following the year in which the Convention enters into force.
Article 30
Termination
This Convention shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Convention, through diplomatic channels, by giving written notice of termination at least six months before the end of any calendar year following after the period of three years from the date on which the Convention enters into force. In such event, the Convention shall cease to have effect:
In Portugal:
In respect of taxes withheld at 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;
ii) In respect of other taxes, as to income arising in a 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 Estonia:
In respect of taxes withheld at source, on income derived on or after the first day of January in the calendar year next following the year in which the notice has been given;
ii) In respect of other taxes on income, for taxes chargeable for any fiscal year beginning on or after the first day of January in the calendar year next following the year in which the notice has been given.
In witness whereof the undersigned, duly authorised thereto, have signed this Convention.
Done in duplicate at ... this day of ... 2003 in the Portuguese, Estonian and English languages, all three texts being equally authentic. In case of divergent interpretation, the English text shall prevail.
For the Portuguese Republic:
(ver assinatura no documento original)
For the Republic of Estonia:
(ver assinatura no documento original)
PROTOCOL
At the moment of signing the Convention between the Portuguese Republic and the Republic of Estonia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, the undersigned have agreed upon the following, which shall be an integral part of the Convention:
Ad article 2 (2)
It is understood that taxes on the total amounts of wages or salaries paid by enterprises shall also be regarded as taxes on income, but social security charges or any other similar charge shall not be regarded as taxes on income.
Ad article 4 (3)
1 - It is understood that while the agreement between the competent authorities has not been reached, such person shall not be entitled to claim any benefits provided by this Convention. Any agreement reached shall be implemented in accordance with the provisions of article 25.
2 - It is understood that the provisions of paragraph 3 are applicable as long as the place of effective management criteria for the determination of residence is not used under the domestic legislation of Estonia. In the case of implementation of such criteria the competent authority of Estonia shall notify the competent authority of Portugal as soon as such criteria is implemented and the following provisions shall be applicable instead of the provisions of paragraph 3 from the earliest possible date as determined by the competent authorities:
«3 - Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is situated.»
Ad article 6
1 - It is understood that the provisions of this article shall also apply to income from movable property or from services connected with the use of immovable property which, under the taxation law of the Contracting State in which the immovable property in question is situated, is assimilated to income from immovable property.
2 - Regarding paragraph 3 of this article, the Contracting States understand that all income and gains arising from the alienation of immovable property situated in a Contracting State may be taxed in that State in accordance with article 13 of this Convention.
Ad article 7
In respect of paragraph 3 of this article and without changing the general principle thereof, the term «expenses which are incurred for the purposes of the permanent establishment» means those deductible expenses directly relating to the business of the permanent establishment.
Ad article 10
In respect of paragraph 3 of this article, the term «dividends» also includes profits attributed under an arrangement for participation in profits (in the case of Portugal, associação em participação).
Ad article 13 (3)
It is understood that paragraph 3 of article 13 shall be applicable only to gains derived by an enterprise operating ships or aircraft in international traffic.
Ad article 25
It is understood that nothing in paragraph 3 shall be construed so as to impose on the competent authorities of a Contracting State the obligation to eliminate double taxation in cases not provided for in the Convention.
Ad article 27
It is understood that «abuse of the general principles of the Convention» may include a situation where the benefits under the Convention shall be granted by a Contracting State in respect of an item of income arising in that State which is not subject to taxation in the other Contracting State or is subject to taxation at a considerably lower tax rate than the rate generally applicable in that other State.
In witness whereof the undersigned, duly authorised thereto, have signed this Protocol.
Done in duplicate at ... this day of ... 2003 in the Portuguese, Estonian and English languages, all three texts being equally authentic. In case of divergent interpretation, the English text shall prevail.
For the Portugueses Republic:
(ver assinatura no documento original)
For the Republic of Estonia:
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