Resolução da Assembleia da República n.º 44/2011 — Aprova a Convenção entre a República Portuguesa e o Estado do Koweit para Evitar a Dupla Tributação e Prevenir a Evasão…

2 - However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that Contracting State, but if the beneficial owner of the royalties is a resident of the other State the tax so charged shall not exceed 10 % of the gross amount of such royalties. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of the limitation.

3 - The term «royalties» as used in this article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematography films and works on films, tapes or other means of reproduction for use in connection with television or radio broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or the use of, or the right to use, industrial, com-mercial or scientific equipment, or for information (know-how) concerning industrial, commercial or scientific experience.

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 in that other Contracting State, or performs in that other Contracting State independent personal services from a fixed base situated in that Contracting State, 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 when the payer is a resident of that Contracting 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 liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the Contracting 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 of the royalties or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds 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 the other Contracting State.

3 - Gains derived by an enterprise of a Contracting State 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 that Contracting State.

4 - Gains derived by a resident of a Contracting State from the alienation of shares deriving more than 50 % of their value directly or indirectly from immovable property situated in the other Contracting State my be taxed in that other State.

5 - Gains from the alienation of any property other than that referred to in paragraphs 1, 2, 3 and 4 shall be taxable only in the Contracting State of which the alienator is a resident.

Article 14

Independent personal services

1 - Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that Contracting State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has or had such a fixed base, the income may be taxed in the other Contracting State but only so much of it as is attributable to that fixed base.

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 Contracting 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 Contracting 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 Contracting State if:

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 by an enterprise of a Contracting State may be taxed in the Contracting State in which the place of effective management of the enterprise is situated.

Article 16

Directors' fees

1 - 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 or other similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.

2 - However, such fees and other similar payment may also be taxed in the Contracting State of which the aforementioned company is a resident, but the tax so charged shall not exceed 15 % of the gross amount of such fees or payment.

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 the 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 - The provisions of paragraphs 1 and 2 shall not apply to income derived by entertainers or sportsmen who are residents of a Contracting State from personal activities as such exercised in the other Contracting State if their visit to that other Contracting State is substantially supported from the public funds of the first-mentioned State, including those of any political or administrative subdivision, local authority or statutory body thereof.

Article 18

Pensions and annuities

1 - Subject to the provisions of paragraph 2 of article 19, pensions and other similar remuneration and annuities paid to an individual who is a resident of a Contracting State in consideration of past employment shall be taxable only in that State.

2 - As used in this article:

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 Contracting State or subdivision or authority shall be taxable only in that State.

1) Is a national of that State; or

2) 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 Contracting State or subdivision or authority shall be taxable only in 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

An individual who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who, at the invitation of the Government of the first-mentioned State or of a university, college, school, museum or other cultural institution in that first-mentioned Contracting State or under an official programme of cultural exchange, is present in that Contracting State for a period not exceeding two consecutive years solely for the purpose of teaching, giving lectures or carrying out research at such institution shall be exempt from tax in that State on his remuneration for such activity.

Article 21

Students and trainees

1 - Payments which a student or business 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 form sources outside that State.

2 - Notwithstanding the provisions of paragraph 1, remuneration which a student or business 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 derives from temporary services rendered in the first-mentioned Contracting State shall not be taxed in that State, provided that:

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 provision 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 of fixed base. In such case the provisions of article 7 or article 14, as the case may be, shall apply.

Article 23

Elimination of double taxation

1 - The laws in force in either of the Contracting States shall continue to govern the taxation in the respective Contracting State except where provisions to the contrary are made in this Convention.

2 - It is agreed that double taxation shall be avoided in accordance with the following paragraphs of this article:

a):

1) In the case of Kuwait, where a resident of Kuwait derives income which, in accordance with the provisions of this Convention, may be taxed in both Portugal and Kuwait, Kuwait shall allow as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Portugal; such deduction shall not, however, exceed that part of the tax on income, as computed before the deduction is given, which is attributable to the income which may be taxed in Portugal;

2) In the case of Portugal, where a resident of Portugal derives income which, in accordance with the provisions of this Convention, may be taxed in Kuwait, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Kuwait; 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 Kuwait;

3 - Where in accordance with any provision of the Convention income derived by a resident of a Contracting State is exempt from tax in that State, such State may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.

Article 24

Non-discrimination

1 - Individuals possessing the nationality of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which individuals possessing the nationality of that other State in the same circumstances are or may be subjected.

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 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 - 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 Contracting 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.

4 - Nothing in this article shall be interpreted as imposing a legal obligation on a Contracting State to extend to the residents of the other Contracting State the benefit of any treatment, preference or privilege which may be accorded to any third state or its residents by virtue of the formation of a customs union, economic union, a free trade area or any regional or sub-regional arrangement relating wholly or mainly to taxation or movement of capital to which the first-mentioned State may be a party.

5 - In this article, the term «taxation» means taxes, which are the subject of 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 Contracting 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 this 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 this 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 this 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 foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political or administrative subdivisions or local authorities, insofar as the taxation there under is not contrary to the Convention. The exchange of information is not restricted by articles 1 and 2.

2 - Any information received under paragraph 1 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, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. 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.

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

4 - If information is requested by a Contracting State in accordance with this article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to de-cline to supply information solely because it has no domestic interest in such information.

5 - In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.

Article 27

Miscellaneous rules

1 - The provisions of this Convention shall not be construed so as to restrict in any manner any exclusion, exemption, deduction, credit or other allowance now or hereafter accorded either:

2 - It is understood that the provisions of this Convention shall not be interpreted so as to prevent the application by a Contracting State of the anti-avoidance provisions provided for in its domestic law.

3 - The competent authorities of each Contracting State may prescribe regulations in order to carry out the provisions of this Convention.

Article 28

Members of diplomatic missions and consular posts

Nothing in this Convention shall affect the fiscal privileges of members of a diplomatic mission, a consular post or an international organization under the general rules of international law or under the provisions of special agreements.

Article 29

Entry into force

1 - Each of the Contracting States shall notify the other in writing through diplomatic channels of the completion of its constitutional procedures for the entry 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:

1) 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;

2) 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;

1) In respect of taxes withheld at source, for amounts paid or credited on or after the first day of January of the year next following the year in which this Convention enters into force;

2) In respect of other taxes, for taxable periods beginning on or after the first day of January of the year next following the year in which this Convention enters into force.

Article 30

Duration and termination

This Convention shall remain in force for a period of five years and shall continue in force thereafter for a period or periods of three years unless either Contracting State notifies the other in writing through diplomatic channels, six months before the expiry of the initial or any subsequent period, of its intention to terminate this Convention. In such event, this Convention shall cease to have effect:

1) In Portugal:

2) In Kuwait:

In witness whereof the undersigned, duly authorized thereto, have signed this Convention.

Done at Lisbon this 23th day of February 2010, corresponding to the 9th day of Rabi 1 1431H, in two originals, in the portuguese, arabic and english languages, all texts being equally authentic. In case of divergence of interpretation or application of this Convention, the english text shall prevail.

For the Portuguese Republic:

Luís Amado, Minister of State and Foreign Affairs.

For the State of Kuwait:

Mohammad Al-Sabah Al-Salem Al-Sabah, Deputy Prime Minister and Minister of Foreign Affairs.

PROTOCOL

At the moment of signing the Convention for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income, this day concluded between the Portuguese Republic and the State of Kuwait, the undersigned have agreed that the following provisions shall form an integral part of the Convention.

Ad article 4 (2)

It is agreed that governmental institutions of a Contracting State within the meaning of sub-paragraph b) of paragraph 2 of article 4 are the following corporate entities created under public law which are wholly owned and controlled by that State:

The Central Banks;

Public corporations;

Authorities;

Government agencies;

Foundations;

Development funds.

Subject to the provisions of sub-paragraph b) of paragraph 2 of this article further institutions can be recognized as governmental institutions by means of mutual agreement between the competent authorities.

Ad article 7

If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of a person, nothing in this article shall affect the application of any law or regulation of that Contracting State relating to the determination of the tax liability of that permanent establishment by making of an estimate by the competent authority of that State of the profits to be subject to tax, provided that such law or regulations shall be applied, taking into account the information available to the competent authority, consistently with the principles of this article.

Ad article 21 (2)

The provisions of paragraph 2 shall apply only to remuneration from employment in an amount not exceeding the monetary equivalent to the Portuguese annual minimum wage.

Ad article 24 (2)

In the case of Kuwait, the taxation on a permanent establishment, which an enterprise of Portugal has in Kuwait, shall not be less favourably levied in Kuwait than the taxation levied on enterprises of third states, carrying on the same activities in the same circumstances.

Ad article 26

The Contracting States shall comply with the guidelines for the regulation of computer files containing personal data as established by the United Nations General Assembly Resolution A/RES/45/95, adopted on the 14th December 1990.

In witness whereof the undersigned, duly authorized thereto, have signed this Protocol.

Done at Lisbon this 23th day of February 2010, corresponding to the 9th day of Rabi 1 1431H, in two originals, in the portuguese, arabic and english languages, all texts being equally authentic. In case of divergence, the english text shall prevail.

For the Portuguese Republic:

Luís Amado, Minister of State and Foreign Affairs.

For the State of Kuwait:

Mohammad Al-Sabah Al-Salem Al-Sabah, Deputy Prime Minister and Minister of Foreign Affairs.