LegalizeResolução da Assembleia da República n.º 13/2006 — Aprova a Convenção entre a República Portuguesa e a República da Turquia para Evitar a Dupla Tributação e Prevenir a…
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Aprova a Convenção entre a República Portuguesa e a República da Turquia para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento, assinada em Lisboa em 11 de Maio de 2005
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 calendar 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, aircraft or road vehicle operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
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 supervisory board of a company which is a resident of the other Contracting State or as a member of any other organ which performs the same functions in the company 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.
3 - Income derived by an entertainer or a sportsman from activities exercised in a Contracting State shall be exempt from tax in that State, if the visit to that State is supported wholly or mainly by public funds of the other contracting state a political or administrative subdivision or local authority thereof.
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. This provision shall also apply to life annuities paid to a resident of a Contracting 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
Professors and researchers
An individual who is or was a resident of a Contracting State immediately before visiting the other Contracting State solely for the purpose 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.
Article 21
Students
1 - 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 receives for the purpose of his maintenance, education or training shall not be taxed in the first-mentioned State, provided that such payments arise from sources outside that State.
2 - Remuneration which a student or a trainee who is or was immediately before visiting a Contracting State a resident of the other Contracting State derives from an employment which he exercises in the first-mentioned State for a period or periods not exceeding 183 days in a calendar year in order to obtain practical experience related to his education or formation shall not be taxed in 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.
CHAPTER IV
Elimination of double taxation
Article 23
Elimination of double taxation
1 - 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 Turkey, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Turkey. 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 this 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;
Notwithstanding the provision of sub-paragraph a), where a company (other than a partnership) which is resident of Portugal receives dividends from a company which is resident of Turkey and which is not exempt from corporation tax in Turkey, Portugal shall allow a deduction for 95 per cent of such dividends included in the tax base of the company receiving dividends, provided that the company which is resident of Portugal is a company that, for an uninterrupted period of two years prior to the payment of the dividends, or if the company paying the dividends has existed for less than two years during the lifetime of the company, holds directly at least 25 per cent of the capital (capital social) of the company paying the dividends.
2 - In the case of Turkey, double taxation shall be avoided as follows:
Subject to the provisions of the laws of Turkey regarding the allowance as a credit against Turkish tax of tax payable in a territory outside Turkey, Portuguese tax payable under the laws of Portugal and in accordance with this Convention, in respect of income (including profits and chargeable gains) derived by a resident of Turkey from sources within Portugal shall be allowed as a deduction from the Turkish tax on such income. Such deduction, however, shall not exceed the amount of Turkish tax, as computed before the deduction is given, attributable to such income;
Where in accordance with any provisions of this Convention income derived by a resident of Turkey is exempt from tax in Turkey, Turkey may nevertheless, in calculating the amount of tax on the remaining income of such resident take into account the exempted income.
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 - Subject to the provisions of paragraph 4 of article 10, 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.
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 - These provisions 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.
6 - The provisions of this Article shall apply to the taxes covered by this Convention.
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.
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. 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
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.
CHAPTER VI
Final provisions
Article 28
Entry into force
1 - Each Contracting State shall notify to the other Contracting State the completion of the procedures required by its law for the bringing into force of this Convention. This Convention shall enter into force on the date of the later of these notifications.
2 - The provisions of this Convention shall 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 of the year next following the year in which this Convention enters into force;
ii) In respect of other taxes as to income arising in any fiscal year beginning on or after the first day of January of the year next following the year in which this Convention enters into force;
In Turkey - in respect of taxes for the taxable period beginning on or after first day of January next following the date upon which this Convention enters into force and subsequent taxable periods.
Article 29
Termination
1 - 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 after the expiration of five years from the date of entry into force of the Convention.
2 - 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 of the year next following that specified in the said notice of termination;
ii) In respect of other taxes, as to income arising in the fiscal year beginning on or after the first day of January of the year next following that specified in the said notice of termination;
In Turkey - for taxes with respect to every taxable period beginning on or after the first day of January of the year next following that specified in the said notice of termination.
In witness whereof the undersigned, duly authorised thereto, have signed this Convention.
Done in duplicate at Lisbon this eleven day of May, 2005 in the Portuguese, Turkish and English languages, all texts being equally authentic. In case of any divergence of interpretation or application of this Convention, the English text shall prevail.
For the Portuguese Republic:
Luís Campos e Cunha, Minister of State and Finance.
For the Republic of Turkey:
Ali Tuygan, Undersecretary of the Ministry of 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 Portuguese Republic and the Republic of Turkey, the undersigned have agreed upon the following additional provisions, which form an integral part of the Convention.
Ad Article 6
With reference to article 6, it is understood that the provisions described therein shall also apply to income from associated movable (personal) property and from the provision of services for the maintenance or operation of immovable property (real property).
Ad Article 8
For the purposes of paragraph 2 of article 8, it is understood that the provisions of that paragraph include profits of a consortium or a similar form of association as corresponds to the participation held in the consortium or association by a company that is resident of a Contracting State.
Ad Article 10
With reference to paragraph 3 of article 10, it is understood that the term «dividends» also includes: in the case of Portugal, profits attributed under an arrangement for participation in profits (associação em participação); in the case of Turkey, income derived from an investment fund and investment trust.
Ad Article 12
For the purposes of paragraph 3 of article 12, it is understood that the term «royalties» includes gains derived from the use of such right or property in the case of an alienation of such right or property to the extent that such gains are contingent on the productivity, use, or disposition thereof.
Ad Article 14
With reference to paragraph 2 of article 14, it is understood that if the enterprise of a Contracting State elects to be taxed in the other Contracting State in accordance with the provisions of article 7 of this Convention, the tax withheld in that other State on the income of that enterprise may be deducted from the tax calculated on income which is determined in accordance with the provisions of article 7 of this Convention.
Ad Article 25
With respect to paragraph 2 of article 25, it is understood that the taxpayer must claim the refund resulting from such mutual agreement within a time period provided by the domestic law after the tax administration has notified the taxpayer of the result of the mutual agreement.
In witness whereof the undersigned, duly authorised thereto, have signed this Protocol.
Done in duplicate at Lisbon this eleven day of May, 2005 in the Portuguese, Turkish and English languages, all texts being equally authentic. In case of any divergence of interpretation or application of this Protocol, the English text shall prevail.
For the Portuguese Republic:
Luís Campos e Cunha, Minister of State and Finance.
For the Republic of Turkey:
Ali Tuygan, Undersecretary of the Ministry of Foreign Affairs.
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