Resolução da Assembleia da República n.º 143/2016 — Aprova o Acordo entre a República Portuguesa e a República Socialista do Vietname para Evitar a Dupla Tributação e…

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 State except in the following circumstances, when such income may also be taxed in the other Contracting State:

(a) If he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other Contracting State; or

(b) If his stay in the other Contracting State is for a period or periods amounting to or exceeding in the aggregate 183 days within any twelve-month period commencing or ending in the fiscal year concerned; in that case, only so much of the income as is derived from his activities performed in that other Contracting State may be taxed in that other Contracting State.

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 and 20, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other 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 State if:

(a) The recipient is present in the 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 fiscal year concerned; and

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

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

3 - Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that Contracting State.

Article 16

Directors' Fees

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

Article 17

Entertainers and Sportspersons

1 - Notwithstanding the provisions of articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theater, motion picture, radio or television artiste, or a musician, or as a sportsperson, from his or her 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 sportsperson in his or her capacity as such accrues not to the entertainer or sportsperson himself or herself 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 sportsperson are exercised.

3 - Notwithstanding the provisions of paragraphs 1 and 2, income derived by entertainers or sportspersons who are residents of a Contracting State from activities in the other Contracting State under an arrangement of cultural exchange between the Governments of both Contracting States shall be exempt from tax in that other Contracting State.

Article 18

Pensions

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

Article 19

Government service

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

(a) Is a national of that State; or

(b) Did not become a resident of that 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 created by, a Contracting State or a political or administrative subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. However, such 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 State.

3 - The provisions of articles 15, 16, 17 and 18 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 a local authority thereof.

Article 20

Students and Apprentices

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

2 - Notwithstanding the provisions of paragraph 1, a student or business apprentice visiting a Contracting State for the purpose of his education or training shall be exempted from tax in that State on the remuneration from employment in that State of an amount not exceeding 9,000 USD per annum during a period not exceeding five years, from the day of his first arrival in that Contracting State, provided that such employment is directly related to his education or training.

Article 21

Other income

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

2 - The provisions of paragraph 1 shall not apply to the income, other than income from immovable property as defined in paragraph 2 of article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of article 7 or article 14, as the case may be, shall apply.

Article 22

Methods for elimination of double taxation

1 - In Viet Nam, double taxation shall be eliminated as follows:

(a) Where a resident of Viet Nam derives income which under the law of Portugal and in accordance with this Agreement may be taxed in Portugal, Viet Nam shall allow as a credit against its tax on the income an amount equal to the tax paid in Portugal. The amount of credit, however, shall not exceed the amount of the Vietnamese tax on that income, profits or gains computed in accordance with the taxation laws and regulations of Viet Nam;

(b) Where a resident of Viet Nam derives income which in accordance with any provision of the Agreement are taxable only in Portugal, Viet Nam may nevertheless, in calculating the amount of tax on the remaining income of such resident in Viet Nam, take into account the exempted income.

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

(a) Where a resident of Portugal derives income which, in accordance with the provisions of this Agreement, may be taxed in Viet Nam, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Viet Nam. 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 Viet Nam;

(b) Where in accordance with any provisions of the Agreement 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;

(c) For the purpose of subparagraph (a) of paragraph 2, the term "income tax paid in Viet Nam" shall be deemed to include any amount which would have been payable as Vietnamese tax for any year but for an exemption or reduction of tax granted for that year or any part thereof under any of the following provisions:

(i) The Law on Business Income Tax of Viet Nam 2008 and the regulations made thereunder, as amended, in so far as they were in force on, and have not been modified since the date of signature of this Agreement, or have been modified since then only in minor respects so as not to affect their general character, and provided always that the competent authority of Viet Nam has certified that any such exemption from or reduction of Vietnamese tax given under these provisions has been granted in order to promote industrial, commercial, scientific or educational development in Viet Nam and the competent authority of Portugal has accepted that such exemption or reduction has been granted for such purpose; or

(ii) Any other provisions of Vietnamese law granting exemption from or reduction of Vietnamese income tax which may be introduced after the signature of this Agreement and which the competent authorities of the Contracting States agree are of a substantially similar character to the Law and regulations named in subparagraph (i), and subject always to certification and acceptance having taken place as provided for in subparagraph (i).

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.

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.

3 - Except where the provisions of paragraph 1 of article 9, paragraph 7 of article 11 or paragraph 7 of article 12 apply interest, royalties, technical fees and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.

4 - Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are or may be subjected.

5 - The provisions of this Article shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.

6 - The provisions of this article shall apply only to the taxes covered by this Agreement.

Article 24

Mutual agreement procedure

1 - Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States 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 States, present his case to the competent authority of the Contracting State of which that person is a resident. 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 State, with a view to the avoidance of taxation which is not in accordance with this Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.

3 - The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement.

4 - The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.

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 Agreement 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 Agreement. 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:

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

(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 State;

(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 (ordre 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 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 interest in a person.

Article 26

Members of diplomatic missions and consular posts

Nothing in this Agreement 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

Entry into force

1 - This Agreement shall enter into force thirty days after the date of receipt of the latter of the notifications, in writing and through diplomatic channels, conveying the completion of the internal procedures of each Contracting State required for that purpose.

2 - The provisions of this Agreement shall have effect:

(a) In Viet Nam:

(i) In respect of taxes withheld at source, in relation to taxable amounts as derived on or after the first day of January following the calendar year in which the Agreement enters into force, and in subsequent calendar years; and

(ii) In respect of other Vietnamese taxes, in relation to income, profits, gains or capital arising on or after the first day of January following the calendar year in which the Agreement enters into force, and in subsequent calendar years; and

(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 this 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 this Agreement enters into force.

Article 28

Termination

This Agreement shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Agreement, through diplomatic channels, by giving to the other Contracting State, written 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 Agreement.

In such event, the Agreement shall cease to have effect:

(a) In Viet Nam:

(i) In respect of taxes withheld at source, in relation to taxable amounts as derived on or after the first day of January following the calendar year in which the notice of termination has been received, and in subsequent calendar years; and

(ii) In respect of other Vietnamese taxes, in relation to income, profits, gains or capital arising on or after the first day of January following the calendar year in which the notice of termination has been received, and in subsequent calendar years; and

(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 following the calendar year in which the notice of termination has been received; and

(ii) In respect of other taxes, as to income arising in the fiscal year beginning on or after the first day of January following the calendar year in which the notice of termination has been received.

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

Done in duplicate at Lisbon this 3rd day of June of the year two thousand and fifteen in the Portuguese, Vietnamese and English languages, all texts being equally authentic. In case of divergence of interpretation of the text of this Agreement, the English text shall prevail.

For the Portuguese Republic:

Paulo Núncio, Secretary of State of Tax Affairs.

For the Socialist Republic of Viet Nam:

Tran Xuan Ha, Deputy Minister of Finance.

PROTOCOL TO THE AGREEMENT BETWEEN THE PORTUGUESE REPUBLIC AND THE SOCIALIST REPUBLIC OF VIET NAM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME.

On signing the Agreement between the Portuguese Republic and the Socialist Republic of Viet Nam for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (hereinafter referred to as "the Agreement"), the signatories have agreed that the following provisions shall form an integral part of the Agreement:

1 - Entitlement to the Benefits of the Agreement:

(a) It is understood that the provisions of the Agreement 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;

(b) It is understood that the benefits foreseen in the Agreement shall not be granted to a resident of a Contracting State which is not the beneficial owner of the income derived from the other Contracting State;

(c) It is understood that the provisions of the Agreement 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 the property or right in respect of which the income is paid to take advantage of those provisions by means of such creation or assignment.

2 - With respect to articles 10, 11 and 12, if after the entry into force of this Agreement, Viet Nam has signed an Agreement or Convention for the avoidance of double taxation with a State which is a member of the European Union, and that Agreement or Convention contains lower withholding tax rates (including zero rates) than those provided for under this Agreement, these rates will automatically replace the rates of this Agreement, from the date of entry into force of the Agreement or Convention between Viet Nam and that State.

3 - The competent authorities of both Contracting States shall notify each other the procedures for applying the Agreement as provided for by their internal laws.

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

Done in duplicate at Lisbon this 3rd day of June of the year two thousand and fifteen in the Portuguese, Vietnamese 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:

Paulo Núncio, Secretary of State of Tax Affairs.

For the Socialist Republic of Viet Nam:

Tran Xuan Ha, Deputy Minister of Finance.