LegalizeResolução da Assembleia da República n.º 53/2008 — Aprova a Convenção entre a República Portuguesa e a República da África do Sul para Evitar a Dupla Tributação e…
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Aprova a Convenção entre a República Portuguesa e a República da África do Sul para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Imposto sobre o Rendimento, assinada em Lisboa em 13 de Novembro de 2006
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
Methods for elimination of double taxation
Article 23
Elimination of double taxation
Double taxation shall be eliminated as follows:
In Portugal:
Where a resident of Portugal derives income which, in accordance with the provisions of this Convention may be taxed in South Africa, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the South African tax paid. 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 South Africa;
ii) Where in accordance with any provision 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 South Africa:
Subject to the provisions of the law of South Africa regarding the deduction from tax payable in South Africa of tax payable in any country other than South Africa (which shall not affect the general principle hereof), Portuguese taxes paid by residents of South Africa in respect of income taxable in Portugal, in accordance with the provisions of this Convention, shall be deducted from the taxes due according to South African fiscal law. Such deduction shall not, however, exceed an amount which bears to the total South African tax payable the same ratio as the income concerned bears to the total 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 - 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 not be construed as preventing a Contracting State from imposing on the profits attributable to a permanent establishment in that Contracting State of a company which is a resident of the other Contracting State, a tax at a rate which does not exceed the rate of income tax or normal tax on companies, as the case may be, by more than five percentage points.
6 - 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 that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, present a case to the competent authority of the Contracting State of which the person is a resident or, if the case comes under paragraph 1 of article 24, to that of the Contracting State of which the person 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 for the purpose of reaching an agreement in the sense of the preceding paragraphs. When it seems advisable in order to reach agreement to have an oral exchange of opinions, such exchange may take place through a commission consisting of representatives of the competent authorities of the Contracting States.
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 the provisions of 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.
CHAPTER VI
Final provisions
Article 28
Entry into force
1 - Each of the Contracting States shall notify to the other the completion of the procedures required by its law for the bringing into force of this Convention.
2 - The Convention shall enter into force thirty days after the date of receipt of the later of the notifications referred to in paragraph 1 and its provisions 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 the 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 in the year next following the year in which the Convention enters into force;
In South Africa, in respect of years of assessment beginning on or after the first day of January next following the date upon which the Convention enters into force.
3 - The Agreement between the Contracting States for the Avoidance of Double Taxation in respect of Income derived from the Business of Sea and Air Transport, signed on the 2nd August 1957, shall cease to have effect in respect of taxes concerning any period of time to which this Convention shall apply with regard to such taxes.
Article 29
Termination
This Convention shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Convention, through the diplomatic channel, 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 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 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 South Africa, in respect of years of assessment 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 authorized thereto, have signed this Convention.
Done in Lisbon, this thirteen day of November 2006, in duplicate in the Portuguese and English languages, both texts being equally authentic.
For the Portuguese Republic:
Fernando Teixeira dos Santos, Minister for Finance.
For the Republic of South Africa:
Naledi Pandor, Minister of Education.
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 South Africa, the undersigned have agreed upon the following additional provisions, which form an integral part of the Convention:
Ad article 24
1 - 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 does not change the general nature thereof).
2 - The provisions of paragraph 3 shall be construed in the sense that insofar as the deductibility of the incurred disbursements is concerned, each Contracting State may apply its own procedures regarding the burden of proof.
3 - It is understood that the provisions of paragraph 5 will only apply while the exemption from Secondary Tax on Companies currently afforded to branches of companies which are not resident in South Africa is in effect.
Portugal shall not benefit from the provisions of paragraph 5 insofar as taxation similar to the Secondary Tax on Companies of South Africa is not established therein.
In witness whereof the undersigned, being duly authorized thereto, have signed this Protocol.
Done in Lisbon, this thirteen day of November 2006, in duplicate in the Portuguese and English languages, both texts being equally authentic.
For the Portuguese Republic:
Fernando Teixeira dos Santos, Minister for Finance.
For the Republic of South Africa:
Naledi Pandor, Minister of Education.
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