LegalizeResolução da Assembleia da República n.º 50/2012 — Aprova a Convenção entre a República Portuguesa e o Japão para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em…
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 o Japão para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento, assinada em Lisboa em 19 de dezembro de 2011
the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State;
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2 - Where a Contracting State includes, in accordance with the provisions of paragraph 1, in the profits of an enterprise of that Contracting State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other Contracting State and where the competent authorities of the Contracting States agree, upon consultation, that all or part of the profits so included are profits which would have accrued to the enterprise of the first-mentioned Contracting State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other Contracting State shall make an appropriate adjustment to the amount of the tax charged therein on those agreed profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention.
3 - Notwithstanding the provisions of paragraph 1, a Contracting State shall not change the profits of an enterprise of that Contracting State in the circumstances referred to in that paragraph after seven years from the end of the taxable year in which the profits that would be subjected to such change would, but for the conditions referred to in that paragraph, have accrued to that enterprise. The provisions of this paragraph shall not apply in the case of fraud or wilful default.
Article 10
Dividends
1 - Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other Contracting State.
2 - However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that Contracting State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed:
5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) that has owned directly for the period of twelve months ending on the date on which entitlement to the dividends is determined, either:
(i) At least 10 per cent of the voting shares of the company paying the dividends where such company is a resident of Japan; or
(ii) At least 10 per cent of the capital of the company paying the dividends where such company is a resident of Portugal; or
10 per cent of the gross amount of the dividends in all other cases.
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3 - The term «dividends» as used in this article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the Contracting State of which the company making the distribution is a resident.
4 - The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of article 7 shall apply.
5 - Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other Contracting State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other Contracting State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other Contracting State.
Article 11
Interest
1 - Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other Contracting State.
2 - However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that Contracting State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3 - Notwithstanding the provisions of paragraph 2, the tax charged by a Contracting State on interest arising in that Contracting State, if the interest is beneficially owned by a bank which is a resident of the other Contracting State and is established and regulated as such under the laws of that other Contracting State, shall not exceed 5 per cent of the gross amount of the interest.
4 - Notwithstanding the provisions of paragraphs 2 and 3, interest arising in a Contracting State shall be taxable only in the other Contracting State if the interest is beneficially owned by that other Contracting State, a political or administrative subdivision or local authority thereof, or the central bank of that other Contracting State.
5 - The term «interest» as used in this article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, and all other income that is subjected to the same taxation treatment as income from money lent by the tax laws of the Contracting State in which the income arises. Income dealt with in article 10 shall not be regarded as interest for the purposes of this Convention.
6 - The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of article 7 shall apply.
7 - Interest 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 interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment is situated.
8 - Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is 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 12
Royalties
1 - Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other Contracting State.
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 Contracting State, the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
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 software, cinematograph films and films or tapes for radio or television broadcasting, any patent, trade mark, design or model, plan, or secret formula or process, or for information 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 therein and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment. In such case the provisions of article 7 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 in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment, then such royalties shall be deemed to arise in the Contracting State in which the permanent establishment is situated.
6 - Where, by reason of a special relationship between the payer and the beneficial owner 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 Contracting State.
2 - Gains derived by a resident of a Contracting State from the alienation of shares or other comparable interests in a company or of interests in a partnership or trust may be taxed in the other Contracting State where the shares or the interests derive at least 50 per cent of their value directly or indirectly from immovable property referred to in article 6 and situated in that other Contracting State.
3 - Gains from the alienation of any property, other than immovable property, forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other Contracting State.
4 - Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic or any property, other than immovable property, pertaining to the operation of such ships or aircraft shall be taxable only in that Contracting State.
5 - Gains from the alienation of any property other than that referred to in the preceding paragraphs of this article shall be taxable only in the Contracting State of which the alienator is a resident.
Article 14
Income from employment
1 - Subject to the provisions of articles 15, 17 and 18, 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:
the recipient is present in that other Contracting State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the taxable year concerned; and
the remuneration is paid by, or on behalf of, an employer who is not a resident of that other Contracting State; and
the remuneration is not borne by a permanent establishment which the employer has in that other Contracting State.
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 that Contracting State.
Article 15
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 of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.
Article 16
Artistes and sportsmen
1 - Notwithstanding the provisions of articles 7 and 14, 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 Contracting 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 and 14, be taxed in the Contracting State in which the activities of the entertainer or sportsman are exercised.
Article 17
Pensions
Subject to the provisions of paragraph 2 of article 18, pensions and other similar remuneration paid to a resident of a Contracting State shall be taxable only in that Contracting State.
Article 18
Government service
1 - Salaries, wages and other similar remuneration paid by a Contracting State or a political or administrative subdivision or local authority thereof to an individual in respect of services rendered to that Contracting State or political or administrative subdivision or local authority shall be taxable only in that Contracting 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 other Contracting State and the individual is a resident of that other Contracting State who:
is a national of that other Contracting State; or
did not become a resident of that other Contracting State solely for the purpose of rendering the services.
2 - Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration paid by, or out of funds to which contributions are made or created by, a Contracting State or a political or administrative subdivision or local authority thereof to an individual in respect of services rendered to that Contracting State or political or administrative subdivision or local authority shall be taxable only in that Contracting State. However, such pensions and other similar remuneration shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that other Contracting State.
3 - The provisions of articles 14, 15, 16 and 17 shall apply to salaries, wages, pensions, and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political or administrative subdivision or local authority thereof.
Article 19
Students
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 Contracting 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 Contracting State, provided that such payments arise from sources outside the first-mentioned Contracting State. The exemption provided by this article shall apply to a business apprentice only for a period not exceeding one year from the date on which he first begins his training in the first-mentioned Contracting State.
Article 20
Other income
1 - Items of income beneficially owned by a resident of a Contracting State, wherever arising, not dealt with in the foregoing articles of this Convention (hereinafter referred to as «other income» in this article) shall be taxable only in that Contracting State.
2 - The provisions of paragraph 1 shall not apply to other income, other than income from immovable property as defined in paragraph 2 of article 6, if the beneficial owner of such other income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the other income is paid is effectively connected with such permanent establishment. In such case the provisions of article 7 shall apply.
3 - Where, by reason of a special relationship between the resident referred to in paragraph 1 and the payer or between both of them and some other person, the amount of other income exceeds the amount which would have been agreed upon between them 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 payment shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
Article 21
Limitation of relief
No relief shall be available under this Convention if it was the main purpose of any person concerned with the creation or assignment of any right or property in respect of which the income is paid or derived to take advantage of the Convention by means of that creation or assignment.
Article 22
Elimination of double taxation
1 - In Portugal, double taxation shall be eliminated as follows:
where a resident of Portugal derives income which, in accordance with the provisions of this Convention, may be taxed in Japan, Portugal shall allow as a deduction from the Portuguese tax on the income of that resident an amount equal to the Japanese tax paid in Japan. Such deduction shall not, however, exceed that part of the Portuguese tax as computed before the deduction is given, which is attributable to the income which may be taxed in Japan;
where in accordance with any provisions of this 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;
notwithstanding the provision of subparagraph a), where a company which is a resident of Portugal receives dividends from a company which is a resident of Japan and which is subject to and not exempt from Japanese tax, Portugal shall allow a deduction for such dividends included in the tax base of the company receiving the dividends, provided that the latter company has directly held a participation corresponding to at least 10 per cent of the capital of the company paying the dividends for an uninterrupted period of one year prior to the date on which the dividends are paid or, if held for a shorter period, it continues to hold that participation until the year-long condition is satisfied. The provisions of this subparagraph shall only apply if the profits out of which such dividends are paid are effectively taxed at a rate of 10 per cent or higher.
2 - In Japan, double taxation shall be eliminated as follows:
subject to the provisions of the laws of Japan regarding the allowance as a credit against Japanese tax of tax payable in any country other than Japan, where a resident of Japan derives income from Portugal which may be taxed in Portugal in accordance with the provisions of this Convention, the amount of Portuguese tax payable in respect of that income shall be allowed as a credit against the Japanese tax imposed on that resident. The amount of credit, however, shall not exceed that part of the Japanese tax which is appropriate to that income;
where the income derived from Portugal is dividends paid by a company which is a resident of Portugal to a company which is a resident of Japan and which has owned at least 25 per cent either of the voting shares issued by the company paying the dividends, or of the total shares issued by that company, during the period of six months immediately before the day when the obligation to pay dividends is confirmed, such dividends shall be excluded from the basis upon which the Japanese tax is imposed, provided that such exclusion shall be subject to the provisions of the laws of Japan regarding the exclusion of dividends from the basis upon which the Japanese tax is imposed;
for the purposes of the preceding subparagraphs of this paragraph, income beneficially owned by a resident of Japan which may be taxed in Portugal in accordance with the provisions of this Convention shall be deemed to arise from sources in Portugal.
Article 23
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 Contracting State in the same circumstances, in particular with respect to residence, are or may be subjected. The provisions of this paragraph 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 Contracting State than the taxation levied on enterprises of that other Contracting State carrying on the same activities. The provisions of this paragraph 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 8 of article 11, paragraph 6 of article 12 or paragraph 3 of article 20 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 Contracting 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 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 Contracting 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 imposed on behalf of a Contracting State or of its political or administrative subdivisions or local authorities.
Article 24
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 23, 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 provisions of 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. 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 purposes of reaching an agreement in the sense of the preceding paragraphs of this article.
5 - Where:
under paragraph 1, a person has presented a case to the competent authority of a Contracting State on the basis that the actions of one or both of the Contracting States have resulted for that person in taxation not in accordance with the provisions of this Convention; and
the competent authorities are unable to reach an agreement to resolve that case pursuant to paragraph 2 within two years from the presentation of the case to the competent authority of the other Contracting State;
any unresolved issues arising from the case shall be submitted to arbitration if the person so requests. These unresolved issues shall not, however, be submitted to arbitration if a decision on these issues has already been rendered by a court or administrative tribunal of either Contracting State. Unless a person directly affected by the case does not accept the mutual agreement that implements the arbitration decision, that decision shall be binding on both Contracting States and shall be implemented notwithstanding any time limits in the domestic laws of these Contracting States. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this paragraph.
Article 25
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 thereunder 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 Contracting 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:
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 (order public).
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 Contracting 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 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 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 26
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 27
Headings
The headings of the articles of this Convention are inserted for convenience of reference only and shall not affect the interpretation of the Convention.
Article 28
Entry into force
1 - Each of the Contracting States shall send in writing and through diplomatic channels to the other the notification confirming that its internal procedures necessary for the entry into force of this Convention have been completed. The Convention shall enter into force on the thirtieth day after the date of receipt of the latter notification.
2 - The provisions of this Convention shall have effect:
in the case of Portugal:
(i) with respect to 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 Convention enters into force; and
(ii) with respect to other taxes, as to income arising in any taxable year beginning on or after the first day of January of the calendar year next following that in which the Convention enters into force; and
in the case of Japan:
(i) with respect to taxes withheld at source, for amounts taxable on or after 1 January in the calendar year next following that in which the Convention enters into force;
(ii) with respect to taxes on income which are not withheld at source, as regards income for any taxable year beginning on or after 1 January in the calendar year next following that in which the Convention enters into force; and
(iii) with respect to other taxes, as regards taxes for any taxable year beginning on or after 1 January in the calendar year next following that in which the Convention enters into force.
Article 29
Termination
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 beginning after the expiry of five years from the date of entry into force of the Convention. In such event, the Convention shall cease to have effect:
in the case of Portugal:
(i) with respect to 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; and
(ii) with respect to other taxes, as to income arising in the taxable year beginning on or after the first day of January of the calendar year next following that in which the notice is given; and
in the case of Japan:
(i) with respect to taxes withheld at source, for amounts taxable on or after 1 January in the calendar year next following that in which the notice is given;
(ii) with respect to taxes on income which are not withheld at source, as regards income for any taxable year beginning on or after 1 January in the calendar year next following that in which the notice is given; and
(iii) with respect to other taxes, as regards taxes for any taxable year beginning on or after 1 January in the calendar year next following that in which the notice is given.
In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Convention.
Done in duplicate at Lisbon this nineteenth day of December, 2011, in the Portuguese, Japanese and English languages, all texts being equally authentic. In case of any divergence of interpretation of the text of this Convention, the English text shall prevail.
For the Portuguese Republic:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07600/0200302038.pdf))
For Japan:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07600/0200302038.pdf))
PROTOCOL TO THE CONVENTION BETWEEN THE PORTUGUESE REPUBLIC AND JAPAN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME.
At the signing of the Convention between the Portuguese Republic and Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (hereinafter referred to as «the Convention»), the Portuguese Republic and Japan have agreed upon the following provisions, which shall form an integral part of the Convention:
1 - The competent authorities of the Contracting States shall notify each other its internal procedures concerning the mode of application of the Convention.
2 - For the purposes of applying the Convention:
an item of income:
(i) derived from a Contracting State through an entity that is organised in the other Contracting State; and
(ii) treated as the income of the beneficiaries, members or participants of that entity under the tax laws of that other Contracting State;
shall be eligible for the benefits of the Convention that would be granted if it were directly derived by a beneficiary, member or participant of that entity who is a resident of that other Contracting State, to the extent that such beneficiaries, members or participants are residents of that other Contracting State and satisfy any other conditions specified in the Convention, without regard to whether the income is treated as the income of such beneficiaries, members or participants under the tax laws of the first-mentioned Contracting State;
an item of income:
(i) derived from a Contracting State through an entity that is organised in the other Contracting State; and
(ii) treated as the income of that entity under the tax laws of that other Contracting State;
shall be eligible for the benefits of the Convention that would be granted to a resident of that other Contracting State, without regard to whether the income is treated as the income of that entity under the tax laws of the first-mentioned Contracting State, if such entity is a resident of that other Contracting State and satisfies any other conditions specified in the Convention;
an item of income:
(i) derived from a Contracting State through an entity that is organised in that Contracting State; and
(ii) treated as the income of that entity under the tax laws of the other Contracting State;
shall not be eligible for the benefits of the Convention.
3 - With reference to article 6 of the Convention:
Income from immovable property includes income from any property other than immovable property connected with the use or the right to use the immovable property, or income derived from services for the maintenance or operation of the immovable property, either of which is subject to the same taxation treatment as income from immovable property by the tax laws of the Contracting State in which the immovable property is situated.
4 - With reference to paragraph 2 of article 8 of the Convention, if Portugal introduces any tax similar to the enterprise tax of Japan, Portugal shall send Japan through diplomatic channels without delay the notification confirming the entry into force of its domestic laws concerning that tax. In this case, the Contracting States shall agree on how that paragraph has effect and ceases to have effect.
5 - Notwithstanding any provisions of the Convention, any income and gains derived by a silent partner in respect of a silent partnership (in the case of Japan, Tokumei Kumiai and, in the case of Portugal, associação em participação) contract or other similar contract may be taxed in the Contracting State in which such income and gains arise and according to the laws of that Contracting State.
6 - For the purposes of subparagraph a) of paragraph 2 of article 10 of the Convention:
It is understood that the term «partnership» does not include any entity that is treated as a body corporate for tax purposes in a Contracting State and is a resident of that Contracting State.
7 - With reference to article 10 of the Convention:
The provisions of subparagraph b) of paragraph 2 of that article shall apply in the case of dividends paid by a company which is entitled to a deduction for dividends paid to its beneficiaries in computing its taxable income in the Contracting State of which the company paying the dividends is a resident.
8 - With reference to article 11 of the Convention, notwithstanding the provisions of paragraphs 2 and 3 of that article, interest arising in Portugal and beneficially owned by any institution with the objective to promote exports or development, the capital of which is wholly owned by Japan as may be agreed upon from time to time between the competent authorities of the Contracting States shall be taxable only in Japan.
9 - With reference to paragraph 3 of article 11 of the Convention, if Portugal concludes an agreement for the avoidance of double taxation with another state on the exemption at source for interest beneficially owned by a bank which is a resident of that other state:
paragraph 3 of article 11 of the Convention shall be deleted and replaced by the following provisions:
«3 - Notwithstanding the provisions of paragraphs 1 and 2, interest arising in a Contracting State and beneficially owned by a bank which is a resident of the other Contracting State and is established and regulated as such under the laws of that other Contracting State shall be taxable only in that other Contracting State.»;
the provisions of paragraph 3 of article 11 of the Convention as amended by the provisions of subparagraph a) of this paragraph shall apply:
(i) in the case of Portugal:
(aa) with respect to taxes withheld at source on interest, the fact giving rise to them appearing on or after the first day of January of the calendar year next following the thirtieth day after the date of receipt of the notification as referred to in subparagraph c) of this paragraph; and
(bb) with respect to other taxes, as to interest arising in any taxable year beginning on or after the first day of January of the calendar year next following the thirtieth day after the date of receipt of the notification as referred to in subparagraph c) of this paragraph; and
(ii) in the case of Japan:
(aa) with respect to taxes withheld at source on interest, for amounts taxable on or after 1 January in the calendar year next following the thirtieth day after the date of receipt of the notification as referred to in subparagraph c) of this paragraph; and
(bb) with respect to taxes on interest which are not withheld at source, as regards interest for any taxable year beginning on or after 1 January in the calendar year next following the thirtieth day after the date of receipt of the notification as referred to in subparagraph c) of this paragraph;
Portugal shall send Japan through diplomatic channels without delay the notification confirming the entry into force of such an agreement.
10 - Notwithstanding the provisions of paragraph 5 of article 13 of the Convention:
Where:
(i) a Contracting State (including, for this purpose in the case of Japan, the Deposit Insurance Corporation of Japan) provides, pursuant to the laws of that Contracting State concerning failure resolution involving imminent insolvency of financial institutions, substantial financial assistance to a financial institution that is a resident of that Contracting State; and
(ii) a resident of the other Contracting State acquires shares in the financial institution from the first-mentioned Contracting State;
the first-mentioned Contracting State may tax gains derived by the resident of the other Contracting State from the alienation of such shares, provided that the alienation is made within five years from the first date on which such financial assistance was provided;
The provisions of subparagraph a) shall not apply if the resident of that other Contracting State acquired any shares in the financial institution from the first-mentioned Contracting State before the entry into force of the Convention or pursuant to a binding contract entered into before the entry into force of the Convention.
11 - With reference to article 15 of the Convention, the term «a member of the board of directors of a company» includes a member of the supervisory board (conselho fiscal) or another similar organ of a company which is a resident of Portugal, as foreseen in the corporate law (Código das Sociedades Comerciais).
12 - With reference to paragraph 5 of article 24 of the Convention:
the provisions of paragraph 5 of article 24 of the Convention shall apply only to a case covered by article 9 of the Convention;
notwithstanding the provisions of subparagraph a) of this paragraph, if Portugal concludes a bilateral agreement for the avoidance of double taxation with another state on the broader scope of the provisions of arbitration after the entry into force of the Convention, then the provisions of paragraph 5 of article 24 of the Convention shall apply to a case within the same broader scope from the thirtieth day after the date of receipt of the notification as referred to in subparagraph c) of this paragraph, provided that the presentation as referred to in subparagraph b) of paragraph 5 of article 24 of the Convention is made on or after that thirtieth day;
Portugal shall send Japan through diplomatic channels without delay the notification confirming the entry into force of such an agreement.
13 - With reference to paragraph 5 of article 24 of the Convention:
The competent authorities shall by mutual agreement establish a procedure in order to ensure that an arbitration decision will be implemented within two years from a request for arbitration as referred to in paragraph 5 of article 24 of the Convention unless actions or inaction of a person directly affected by the case presented pursuant to that paragraph hinder the resolution of the case or unless the competent authorities and that person agree otherwise;
An arbitration panel shall be established in accordance with the following rules:
(i) An arbitration panel shall consist of three arbitrators with expertise or experience in international tax matters;
(ii) Each competent authority shall appoint one arbitrator who may be its national. The two arbitrators appointed by the competent authorities shall appoint the third arbitrator who serves as the chair of the arbitration panel in accordance with the procedures agreed by the competent authorities;
(iii) All arbitrators shall not be employees of the tax authorities of the Contracting States, nor have had dealt with the case presented pursuant to paragraph 1 of article 24 of the Convention in any capacity. The third arbitrator shall not be a national of either Contracting State, nor have had his or her usual place of residence in either Contracting State, nor have been employed by either Contracting State;
(iv) The competent authorities shall ensure that all arbitrators and their staff agree, in statements sent to each competent authority, prior to their acting in an arbitration proceeding, to abide by and be subject to the same confidentiality and non-disclosure obligations described in paragraph 2 of article 25 of the Convention and under the applicable domestic laws of the Contracting States;
(v) Each competent authority shall bear the cost of its appointed arbitrator and its own expenses. The cost of the chair of an arbitration panel and other expenses associated with the conduct of the proceedings shall be borne by the competent authorities in equal shares;
The competent authorities shall provide the information necessary for the arbitration decision to all arbitrators and their staff without undue delay;
An arbitration decision shall be treated as follows:
(i) An arbitration decision has no formal precedential value;
(ii) An arbitration decision shall be final, unless that decision is found to be unenforceable by the courts of one of the Contracting States due to a violation of paragraph 5 of article 24 of the Convention, of this paragraph or of any procedural rule determined in accordance with subparagraph a) of this paragraph that may reasonably have affected the decision. If the decision is found to be unenforceable due to the violation, the decision shall be considered not to have been made;
Where, at any time after a request for arbitration has been made and before the arbitration panel has delivered a decision to the competent authorities and the person who made the request for arbitration, the competent authorities have solved all the unresolved issues submitted to the arbitration, the case shall be considered as solved pursuant to paragraph 2 of article 24 of the Convention and no arbitration decision shall be provided.
14 - With reference to paragraph 5 of article 25 of the Convention, a Contracting State may decline to supply information relating to confidential communications between attorneys, solicitors or other admitted legal representatives in their role as such and their clients to the extent that the communications are protected from disclosure under the domestic law of that Contracting State.
In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
Done in duplicate at Lisbon this nineteenth day of December, 2011, in the Portuguese, Japanese and English languages, all texts being equally authentic. In case of any divergence of interpretation of the text of this Protocol, the English text shall prevail.
For the Portuguese Republic:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07600/0200302038.pdf))
For Japan:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07600/0200302038.pdf))
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