Resolução da Assembleia da República n.º 49/2012 — Aprova o Acordo entre a República Portuguesa e a Região Administrativa Especial de Hong Kong da República Popular da…

1 - Subject to the provisions of articles 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting Party in respect of an employment shall be taxable only in that Party unless the employment is exercised in the other Contracting Party. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other Party.

2 - Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting Party in respect of an employment exercised in the other Contracting Party shall be taxable only in the first-mentioned Party if:

(a) the recipient is present in the other Party for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the taxable period concerned; and

(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other Party; and

(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other Party.

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 Party shall be taxable only in that Party.

Article 16

Directors' fees

Directors' fees and other similar payments derived by a resident of a Contracting Party in his capacity as a member of the board of directors of a company which is a resident of the other Contracting Party may be taxed in that other Party.

Article 17

Artistes and sportsmen

1 - Notwithstanding the provisions of articles 14 and 15, income derived by a resident of a Contracting Party 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 Party, may be taxed in that other Party.

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 Party in which the activities of the entertainer or sportsman are exercised.

Article 18

Pensions

1 - Subject to the provisions of paragraph 2 of article 19, pensions and other similar remuneration (including a lump sum payment) paid to a resident of a Contracting Party in consideration of past employment or self-employment shall be taxable only in that Party.

2 - Notwithstanding the provisions of paragraph 1, payments made under a mandatory provident fund scheme in a Contracting Party, and any other similar schemes or arrangements which may be established in that Party to replace that scheme, may be taxed in that Party.

Article 19

Government service

1 - Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting Party or a political or administrative subdivision or a local authority thereof to an individual in respect of services rendered to that Party or subdivision or authority shall be taxable only in that Party. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting Party if the services are rendered in that Party and the individual is a resident of that Party who:

(a) in the case of the Hong Kong Special Administrative Region, has the right of abode therein and in the case of Portugal, is a national thereof; or

(b) did not become a resident of that Party solely for the purpose of rendering the services.

2 - Any pension (including a lump sum payment) paid by, or paid out of funds created or contributed by, a Contracting Party or a political or administrative subdivision or a local authority thereof to an individual in respect of services rendered to that Party or subdivision or authority shall be taxable only in that Party. However, such pensions (whether a payment in lump sum or by instalments) shall be taxable only in the other Contracting Party if the services were rendered in that Party and the individual is a resident of that Party, and that the case falls within subparagraph a) or b) of paragraph 1 of this article.

3 - The provisions of articles 15, 16, 17 and 18 shall apply to salaries, wages, pensions (including a lump sum payment), and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting Party or a political or administrative subdivision or a local authority thereof.

Article 20

Students

Payments which a student who is or was immediately before visiting a Contracting Party a resident of the other Contracting Party and who is present in the first-mentioned Party solely for the purpose of his education receives for the purpose of his maintenance or education shall not be taxed in that Party, provided that such payments arise from sources outside that Party.

Article 21

Other income

1 - Items of income of a resident of a Contracting Party, wherever arising, not dealt with in the foregoing articles of this Agreement shall be taxable only in that Party.

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 Party, carries on business in the other Contracting Party through a permanent establishment situated therein, or performs in that other Party 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 22

Elimination of double taxation

1 - In the case of the Hong Kong Special Administrative Region, double taxation shall be eliminated as follows:

Subject to the provisions of the laws of the Hong Kong Special Administrative Region relating to the allowance of a credit against Hong Kong Special Administrative Region tax of tax paid in a jurisdiction outside the Hong Kong Special Administrative Region (which shall not affect the general principle of this article), Portuguese tax paid under the laws of Portugal and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of the Hong Kong Special Administrative Region from sources in Portugal, shall be allowed as a credit against Hong Kong Special Administrative Region tax payable in respect of that income, provided that the credit so allowed does not exceed the amount of Hong Kong Special Administrative Region tax computed in respect of that income in accordance with the tax laws of the Hong Kong Special Administrative Region.

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

Where a resident of Portugal derives income which, in accordance with the provisions of this Agreement, may be taxed in Hong Kong Special Administrative Region, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Hong Kong Special Administrative Region. 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 Hong Kong Special Administrative Region.

3 - Where in accordance with any provisions of this Agreement income derived by a resident of a Contracting Party is exempt from tax in that Party, that Party 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 23

Non-discrimination

1 - Persons who, in the case of the Hong Kong Special Administrative Region, have the right of abode or are incorporated or otherwise constituted therein, and, in the case of Portugal, are Portuguese nationals, shall not be subjected in the other Contracting Party to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which persons who have the right of abode or are incorporated or otherwise constituted in that other Party (where that other Party is the Hong Kong Special Administrative Region) or nationals of that other Party (where that other Party is Portugal) 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 Parties.

2 - Stateless persons who are residents of a Contracting Party shall not be subjected in either Contracting Party to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which persons who have the right of abode in the Party (where the Party is the Hong Kong Special Administrative Region) or nationals of the Party (where the Party is Portugal) in the same circumstances, in particular with respect to residence, are or may be subjected.

3 - The taxation on a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party shall not be less favourably levied in that other Party than the taxation levied on enterprises of that other Party carrying on the same activities. This provision shall not be construed as obliging a Contracting Party to grant to residents of the other Contracting Party any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.

4 - Except where the provisions of paragraph l 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 Party to a resident of the other Contracting Party 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 Party.

5 - Enterprises of a Contracting Party, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting Party, shall not be subjected in the first-mentioned Party 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 Party are or may be subjected.

6 - The provisions of this article shall, notwithstanding the provisions of article 2, apply to taxes of every kind and description.

Article 24

Mutual agreement procedure

1 - Where a person considers that the actions of one or both of the Contracting Parties result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those Parties, present his case to the competent authority of the Contracting Party of which he is a resident or, if his case comes under paragraph 1 of article 23, to that of the Contracting Party in which he has the right of abode or is incorporated or otherwise constituted (in the case of the Hong Kong Special Administrative Region) or of which he is a national (in the case of Portugal). 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 Agreement.

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 Party, with a view to the avoidance of taxation which is not in accordance with the Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting Parties.

3 - The competent authorities of the Contracting Parties shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.

4 - The competent authorities of the Contracting Parties 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 Parties shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws of the Contracting Parties concerning taxes covered by the Agreement, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by article 1.

2 - Any information received under paragraph 1 by a Contracting Party shall be treated as secret in the same manner as information obtained under the domestic laws of that Party 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 referred to in paragraph 1. 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. Information shall not be disclosed to any third jurisdiction for any purpose.

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

(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting Party;

(b) 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 Party;

(c) 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 (order public).

4 - If information is requested by a Contracting Party in accordance with this article, the other Contracting Party shall use its information gathering measures to obtain the requested information, even though that other Party 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 Party to decline 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 Party 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 26

Fiscal privileges

Nothing in this Agreement shall affect the fiscal privileges, including those of members of consular posts, under the general rules of international law or under the provisions of special agreements.

Article 27

Miscellaneous rules

Nothing in this Agreement shall prejudice the right of each Contracting Party to apply its domestic laws and measures concerning tax avoidance, whether or not described as such.

CHAPTER VI

Final provisions

Article 28

Entry into force

1 - Each Contracting Party shall notify the other, in writing and through appropriate channels, that all the domestic procedures necessary for the entry into force of this Agreement have been completed. The Agreement shall enter into force on the thirtieth day following the date of the latter notification.

2 - The provisions of the Agreement shall have effect:

(a) in the Hong Kong Special Administrative Region, in respect of Hong Kong Special Administrative Region tax, for any year of assessment beginning on or after 1 April in the calendar year next following that in which the Agreement enters into force;

(b) in Portugal:

(i) in respect of taxes withheld at source, the fact giving rise to them appearing on or after the first day of January of the calendar year next following that in which the Agreement 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 calendar year next following that in which the Agreement enters into force.

Article 29

Termination

1 - This Agreement shall remain in force indefinitely.

2 - However, after the expiration of a period of five years from the date of its entry into force, either Contracting Party may terminate the Agreement. The termination shall be notified in writing and through appropriate channels, before the thirtieth day of June of a calendar year.

3 - In the event of termination, the Agreement shall cease to have effect:

(a) in the Hong Kong Special Administrative Region, in respect of Hong Kong Special Administrative Region tax, for any year of assessment beginning on or after 1 April in the calendar year next following that in which the notice is given;

(b) in Portugal:

(i) in respect of taxes withheld at source, the fact giving rise to them appearing on or after the first day of January of the calendar year next following that in which the notice is given;

(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 calendar year next following that in which the notice is given.

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

Done in duplicate at Hong Kong this 22th day of March 2011, in the Portuguese, Chinese and English languages, all texts being equally authentic. In case of any divergence, the English text shall prevail.

For the Portuguese Republic:

Manuel Carvalho, Consul-General of Portugal in Macau and Hong Kong.

For the Hong Kong Special Administrative Region of the People's Republic of China:

Professor K. C. Chan, Secretary for Financial Services and Treasury.

PROTOCOL

At the time of signing the Agreement between the Portuguese Republic and the Hong Kong Special Administrative Region of the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the «Agreement») the Contracting Parties have agreed upon the following provisions which form an integral part of the Agreement.

In respect of paragraph 2 of article 3, it is understood that the term «any penalty or interest» includes, in the case of the Hong Kong Special Administrative Region, any sum added to the Hong Kong Special Administrative Region tax by reason of default and recovered therewith and «additional tax» under Section 82A of the Inland Revenue Ordinance.

In the case of Portugal, it is understood that the provisions of article 6 shall also apply to income derived from movable property or from services, which are connected with the use or the right to use the immovable property, and which, under the taxation law of Portugal, is assimilated to income from immovable property.

It is understood that the provisions of articles 10, 11, 12, 13 and 21 shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of shares or other rights in respect of which the dividends are paid, the creation or assignment of debt-claim in respect of which the interest is paid, the creation or assignment of rights in respect of which the royalties are paid, the alienation of property out of which the gains are made, the creation or assignment of rights in respect of which income is paid to take advantage of these articles by means of that creation or assignment.

In respect of paragraph 3 of article 10, in the case of Portugal, the term «dividends» also includes profits attributed under an arrangement for participation in profits («associação em participação»).

It is understood that where a company is a resident of Portugal, article 16 also applies to a member of the supervisory board or organ of a company, that is, «conselho fiscal» and «fiscal único».

In respect of article 25, it is understood that:

(a) the article does not obligate the Contracting Parties to exchange information on a spontaneous or automatic basis;

(b) the exchange of information provided in the article does not include measures which constitute «fishing expeditions»;

(c) the provisions of the article shall not apply retrospectively;

(d) the Contracting Parties shall ensure the protection of personal data transferred according to the Agreement and their domestic laws.

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

Done in duplicate at Hong Kong this 22th day of March 2011, in the Portuguese, Chinese and English languages, all texts being equally authentic. In case of any divergence, the English text shall prevail.

For the Portuguese Republic:

Manuel Carvalho, Consul-General of Portugal in Macau and Hong Kong.

For the Hong Kong Special Administrative Region of the People's Republic of China:

Professor K. C. Chan, Secretary for Financial Services and Treasury.