CONVENTION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPEC
颁布时间:1993-10-24
The Government of the United States of America and the Government of
the Republic of Kazakhstan, confirming their desire to develop and
strengthen the economic, scientific, technical and cultural cooperation
between both States, and desiring to conclude a convention for the
avoidance of double taxation and the prevention of fiscal evasion with
respect to taxes on income and capital, have agreed as follows:
ARTICLE 1
General Scope
1. This Convention shall apply to persons who are residents of one or
both of the Contracting States and to other persons as specifically
provided in the Convention.
2. The Convention shall not restrict in any manner any exclusion,
exemption, deduction, credit, or other allowance now or hereafter
accorded:
a) by the laws of either Contracting State; or
b) by any other agreement between the Contracting States.
3. Notwithstanding any provision of the Convention except paragraph 4,
a Contracting State may tax, in accordance with its domestic law,
residents (as determined under Article 4 (Residence)) and Citizens or
former citizens of that State.
4. The following benefits shall be conferred by a Contracting State
notwithstanding the provisions of paragraph 3:
a) under paragraph 2 of Article 7 (Associated Enterprises), paragraph
5 of Article 18 (Pensions, etc.) and Articles 23 (Relief from Double
Taxation), 24 (Non-discrimination) and 25 (Mutual Agreement Procedure);
and
b) under Articles 17 (Government Service), 19 (Students, Trainees and
Researchers), and 27 (Diplomatic Agents and Consular Officers) for
individuals who are neither citizens of that State nor, in the case of the
United States of America, individuals having immigrant status therein.
ARTICLE 2
Taxes Covered
1. The taxes to which this Convention shall apply are:
a) in the United States of America: the Federal income taxes imposed
by the Internal Revenue Code, but excluding the accumulated earnings tax,
the personal holding company tax, and social security taxes (hereafter
referred to as United States tax).
b) in the Republic of Kazakhstan: taxes on profits and income provided
by the laws on Taxation of Enterprises, Associations and Organizations"
and "On the Income Tax on Citizens of the Kazakh SSR, Foreign Citizens and
Stateless Persons" (hereafter referred to as Kazakhstan tax).
2. The Convention shall apply also to any substantially similar taxes
which are imposed after the date of signature of the Convention in
addition to, or in place of, the existing taxes, including taxes which
are substantially similar to those currently imposed by one Contracting
State but not by the other Contracting State and which are subsequently
imposed by the other State. The competent authorities of the Contracting
States shall notify each other of any significant changes which have been
made in their respective taxation laws and of any official published
material concerning the application of the Convention, including
explanations, regulations, rulings, or judicial decisions.
3. The Convention shall also apply to any tax on capital described in
subparagraph (g) of paragraph 1 of Article 3 (General Definitions) that is
imposed by either Contracting State as of the date of signature of the
Convention or thereafter, but only if such capital tax is provided by
Federal or Republic legislation.
ARTICLE 3
General Definitions
1. For the purposes of this Convention, unless the context otherwise
requires:
a) the term "Contracting State" means the United States of America
(the United States) or the Republic of Kazakhstan (Kazakhstan), as the
context requires.
b) the term "United States" means the United States of America, but
does not include Puerto Rico, the virgin Islands, Guam, or any other
United States possession or territory. When used in a geographical sense,
the term "United States" includes the territorial sea, and also the
exclusive economic zone and continental shelf in which the United States,
for certain purposes, may exercise sovereign rights and jurisdiction in
accordance with international law and in which the laws relating to United
States tax are applicable;
c) the term "Kazakhstan" means the Republic of Kazakhstan. when used
in a geographical sense, the term "Kazakhstan" includes the territorial
sea, and also the exclusive economic zone and continental shelf in which
Kazakhstan, for certain purposes, may exercise sovereign rights and
jurisdiction in accordance with international law and in which the laws
relating to Kazakhstan tax are applicable;
d) the term "person" means an individual, an estate, a trust, a
partnership, a company and any other body of persons;
e) the term "company" means any entity which is treated as a body
corporate for tax purposes. In the case of Kazakhstan, this term means a
joint stock company, a limited liability company or any other legal entity
or other organization which is liable to a tax on profits;
f) the term "international traffic" means any transport by a Ship or
aircraft, except when such transport is solely between places in the other
Contracting State;
g) for purposes of Article 22 (Capital), the term "capital" means
movable and real property, and includes (but is not limited to) cash,
stock or other evidences of ownership rights, notes, bonds or other
evidences of indebtedness, and patents, trademarks, copyrights or other
like right or property;
h) the term "competent authority' means:
i) in the United States: the Secretary of the Treasury or his
authorized representative; and
ii) in Kazakhstan; the Minister of Finance or his authorized
representative.
2. As regards the application of the Convention by a Contracting
State, any term not defined therein shall, unless the context otherwise
requires or the competent authorities agree to a common meaning pursuant
to the provisions of Article 25 (Mutual Agreement Procedure), have the
meaning which it has under the laws of that State concerning the taxes to
which the Convention applies.
ARTICLE 4
Residence
1. For the purposes of this Convention, the term "resident of a
Contracting State" means any person who, under the laws of that State, is
liable to tax therein by reason of his domicile, residence, citizenship,
place of management, place of incorporation, or any other criterion of a
similar nature.
a) However, this term does not include any person who is liable to tax
in that State in respect only of income from sources in that State or
capital situated therein.
b) In the case of income derived by a partnership, trust, or estate,
residence is determined in accordance with the residence of the person
liable to tax with respect to such income.
2. Where by reason of the provisions of paragraph 1 an individual is a
resident of both Contracting States, then his status shall be determined
as follows:
a) he shall be deemed to be a resident of the State in which he has a
permanent home available to him; if he has a permanent home available to
him in both States, he shall be deemed to be a resident of the State with
which his personal and economic relations are closer (center of vital
interests)
b) if the State in which he has his center of vital interests cannot
be determined, or if he does not have a permanent home available to him in
either State, he shall be deemed to be a resident of the State in which he
has an habitual abode;
c) if he has an habitual abode in both States or in neither of them,
he shall be deemed to be a resident of the State of which he is a citizen;
d) if each State considers him as its citizen or if he is a citizen of
neither of them, the competent authorities of the Contracting States shall
settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1 a company is a
resident of both Contracting States, the competent authorities of the
Contracting States shall endeavor to settle the question by mutual
agreement, but if the competent authorities are unable to reach such an
agreement, the company shall be treated as a resident of neither
Contracting State for the purposes of deriving benefits under this
Convention.
4. Where by reason of the provisions of paragraph 1 a person other
than an individual or a company is a resident of both Contracting States,
the competent authorities of the Contracting States shall settle the
question by mutual agreement and determine the mode of application of the
Convention to such person.
ARTICLE 5
Permanent Establishment
1. For the purposes of this Convention, the term "permanent
establishment" means a fixed place of business through which a resident of
a Contracting State, whether or not a legal entity, carries on business
activities in the other Contracting State.
2. The term "permanent establishment" includes especially:
a) a place of management;
b) a branch;
c) an office;
d) a factory;
e) a workshop; and
f) a mine, an oil or gas well, a quarry, or any other place of
extraction of natural resources.
3. The term "permanent establishment" also includes:
a) a building site or construction, installation or assembly project,
supervisory services connected therewith, or an installation or drilling
rig or ship used for the exploration or exploitation of natural resources,
but only if such site, project, or rig lasts or such services continue for
a period of more than 12 months; or
b) the furnishing of services, including consultancy services, by
residents through employees or other personnel engaged by the residents
for such purpose, but only where activities of that nature continue (for
the same or a connected project) within the country for a period of more
than 12 months.
4. Notwithstanding the preceding provisions of this Article, the term
"permanent establishment" shall be deemed not to include:
a) the use of facilities solely for the purpose of storage, display,
or delivery of goods or merchandise belonging to the resident;
b) the maintenance of a stock of goods or merchandise belonging to the
resident solely for the purpose of storage, display, or delivery;
c) the maintenance of a stock of goods or merchandise belonging to the
resident solely for the purpose of processing by another person;
d) the maintenance of a fixed place of business solely for the purpose
of purchasing goods or merchandise, or of collecting information, for the
resident;
e) the maintenance of a fixed place of business solely for the purpose
of carrying on, for the resident, any other activity of a preparatory or
auxiliary character;
f) the maintenance of a fixed place of business solely for any
combination of the activities mentioned in subparagraphs a) to e).
5. Notwithstanding the provisions of paragraphs 1 and 2, where a
resident of a Contracting State carries on activities in the other
Contracting State through an agent, that resident shall be deemed to have
a permanent establishment in that other State in respect of any activities
which the agent undertakes for that resident, if the agent meets each of
the following conditions:
a) he has an authority to conclude contracts in that other State in
the name of the resident;
b) he habitually exercises that authority;
c) he is not an agent of an independent status to whom the provisions
of paragraph 6 apply; and
d) his activities are not limited to those mentioned in paragraph 4.
6. A resident of a Contracting State shall not be deemed to have a
permanent establishment in the other Contracting State merely because it
carries on business in that other State through a broker, general
commission agent, or any other agent of an independent status, provided
that such persons are acting in the ordinary course of their business.
7. The fact that a company which is a resident of a Contracting State
controls or is controlled by a company which is a resident of the other
Contracting State, or which carries on business in that other State
(whether through a permanent establishment or otherwise), shall not of
itself constitute either company a permanent establishment of the other.
ARTICLE 6
Business Profits
1. The business profits of a resident of a Contracting State shall be
taxable only in that State unless the resident carries on or has carried
on business in the other Contracting State through a permanent
establishment situated therein. If the resident carries on or
has carried on business as aforesaid, the business profits of the resident
may be taxed in the other State but only so much of them is attributable
to:
a) that permanent establishment;
b) sales in that other State of goods or merchandise of the came kind
as those sold through that permanent establishment; or
c) other business activities carried on in that other State of the
same kind as those effected through that permanent establishment.
2. Subject to the provisions of paragraph 3, where a resident of a
Contracting State carries on or has carried on business in the other
Contracting State through a permanent establishment situated therein,
there shall in each Contracting State be attributed to that permanent
establishment the business profits which it sight be expected to make if
it were a distinct and independent person engaged in the same or similar
activities under the same or similar conditions.
3. In determining the business profits of a permanent establishment,
there shall be allowed as deductions expenses which are incurred for the
purposes of the permanent establishment. There shall be allowed a
reasonable allocation, between a resident of a Contracting State and a
permanent establishment of such resident situated in the other Contracting
State, of properly documented expenses incurred for the purpose of the
resident's business activities. Such allocable expenses include executive
and general administrative expenses, research and development expenses,
interest, and charges for management, consultancy, or technical
assistance, whether incurred in the State in which the permanent
establishment is situated or elsewhere. The permanent
establishment shall not be allowed a deduction for amounts paid to its
head office or any of the other offices of the resident by way of
royalties, fees or other similar payments in return for the use of patents
or other rights, or by way of commission, for specific services performed
or for management, or by way of interest on moneys lent to the permanent
establishment. The business profits attributed to a permanent establishment
shall be determined by the same method year by year unless
there is good and sufficient reason to the contrary.
4. No business profits shall be attributed to a permanent
establishment by reason of the mere purchase by that permanent
establishment of goods or merchandise for the resident.
5. Where the information available to or readily obtainable by the
competent authority of a Contracting State is not adequate to determine
the expenses of a permanent establishment, profits may be calculated in
accordance with the tax laws of that State. For purposes of this paragraph
5, information will be considered to be readily obtainable if the taxpayer
provides the information to the requesting competent authority within 91
days of a written request by the competent authority for such information.
6. For purposes of this Article, the term "business profits" means
profits derived from the active conduct of business. It includes, for
example, profits from manufacturing, mercantile, transportation,
communication, or extractive activities, and from the
furnishing of services of another person. It does not include income
received by an individual for his performance of personal services (either
as an employee or in an independent capacity) Income of an individual from
the performance of services as an employee is dealt with in Article 15
(Income from Employment). Income of an individual from the performance of
services in an independent capacity is dealt with in Article 14
(Independent Personal Services).
7. Where business profits include items of income which are dealt with
separately in other Articles of the Convention, then the provisions of
those Articles shall not be affected by the provisions of this Article.
ARTICLE 7
Associated Enterprises
1. Where:
a) a person which is a resident of a Contracting State participates
directly or indirectly in the management, control or capital of a person
which is a resident of the other Contracting State; or
b) the same persons participate directly or indirectly in the
management, control or capital of a resident of a Contracting State and
any other person; and
c) in either case conditions are made or imposed between the two
persons in their commercial or financial relations which differ from those
which would be made between independent persons, then any income, which
would have accrued to one of the persons in the absence of those
conditions, but has not so accrued because of those conditions, may be
included in the income of that person and taxed accordingly.
2. Where a Contracting State includes in the profits of a resident of
that State, and taxes accordingly, profits on which a resident of the
other Contracting State has been charged to tax in that other State, and
the profits so included are profits which would have accrued to the
resident of the first-mentioned State if the conditions made between
the two persons had been those which would have been made between
independent enterprises, then that other State shall make an appropriate
adjustment to the amount of the tax charged therein on those profits. In
determining such adjustment, due regard shall be paid to the other
provisions of this Convention and the competent authorities of the
Contracting States shall if necessary consult each other.
3. The provisions of paragraph 1 shall not limit either Contracting
State in applying its domestic law to make adjustments to income,
deductions, credits, or allowances between persons, whether or not
residents of a Contracting State, when necessary to prevent evasion of
taxes or clearly to reflect the income of any such persons.
ARTICLE 8
Shipping and Air Transport
1. Income of a resident of a Contracting State from the operation of
ships or aircraft in international traffic shall be taxable only in that
State.
2. Income of a resident of a Contracting State from the following
activities shall be taxable only in that State:
a) income from the rental of ships or aircraft operated in
international traffic by the lessee;
b) income from the rental of ships and aircraft, whether or not
operated in international traffic, if such rental activity is incidental
to the operation of ships or aircraft in international traffic by the
lessor; and
c) income (including demurrage) from the use, or rental for use, of
containers in international traffic (including trailers, barges, and
related equipment for the transport of containers).
3. The provisions of paragraphs 1 and 2 shall also apply to income
from participation in a pool, a joint business, or an international
transportation agency.
ARTICLE 9
Income from Real Property
1. Income derived by a resident of a Contracting State from real
property (including income from agriculture or forestry) situated in the
other Contracting State may be taxed in that other State.
2. For purposes of this Convention, the term "real property" includes
any interest owned or held in tenancy by any individual or any legal
entity in land, unsevered products of land as well as any fixture built on
that land (buildings, structures, etc.) and other property considered real
property under the law of the Contracting State in which the property in
question is situated. Ships, boats and aircraft shall not be regarded as
real property.
3. The provisions of paragraph 1 shall apply to income derived from
the direct use, letting, or use in any other form of real property.
4. A resident of a Contracting State who is liable to tax in the other
Contracting State on income from real property situated in that other
State may elect, subject to the procedures of the domestic law of that
other State, to compute the tax on such income on a net basis as if such
income were attributable to a permanent establishment in that other State.
Any such election shall be binding for the taxable year of the election
and all subsequent taxable years unless revoked pursuant to the procedures
under the domestic law of the Contracting State in which the property is
situated.
ARTICLE 10
Dividends
1. Dividends that are paid by a company which is a resident of a
Contracting State and that are beneficially owned by a resident of the
other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the first Contracting
State, and according to the laws of that State, but the tax so charged
shall not exceed:
a) 5 percent of the gross amount of the dividends if the beneficial
owner is a company which owns at least 10 percent of the voting stock of
the company paying the dividends; and
b) 15 percent 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 State
of which the company making the distribution is a resident. The term
"dividends" also includes income from arrangements,including debt
obligations, carrying the right to participate in profits, to the extent
so characterized under the law of the Contracting State in which the
income arises. In the case of Kazakhstan, this term includes, in
particular, income transmitted abroad to the foreign participants of a
joint venture created under the laws of Kazakhstan.
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 or has carried on business in the other Contracting
State, of which the company paying the dividends is a resident, Through a
permanent establishment situated therein, or performs or has performed in
that other State independent personal services from a fixed base situated
therein, and the dividends are attributable to such permanent
establishment or fixed base. In such case the provisions of Article 6
(Business profits) or Article 14 (Independent personal Services), as the
case may be, shall apply.
5. A company which is a resident of a Contracting State and which has
a permanent establishment in the other Contracting State or which is
subject to tax on a net basis in that other State under paragraph 4 of
Article 9 (Income from Real Property), paragraphs 2 and 3(b) of Article 12
(Royalties), or paragraphs l or 2 of Article 13 (Gains) may be subject in
That other State to a tax in addition to the tax on profits. Such tax,
however, may not exceed 5 percent of the portion of the profits of the
company subject to tax in the other Contracting State which represents the
"dividend equivalent amount" of such profits.