CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE PORTUGUESE REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME (3)
颁布时间:1994-09-06
ARTICLE 11
Interest
1. Interest arising in a Contracting State and derived by a resident
of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State
in which it arises, and according to the laws of that 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 percent of the gross amount
of such interest.
The competent authorities of the Contracting States shall by mutual
agreement settle the mode of application of this limitation.
3. Notwithstanding the provisions of paragraph 2, interest arising in
one of the Contracting States and beneficially owned by a resident of the
other Contracting State shall be exempt from tax in the first-mentioned
State, provided that:
(a) the debtor of such interest is the Government of that Contracting
State, a political or administrative subdivision thereof, or any of its
local authorities; or
(b) the interest is paid to the Government of the other Contracting
State, to a political or administrative subdivision thereof, or to any of
its local authorities, or to an institution or organization (including
financial institutions) wholly owned by them; or
(c) it is interest on a long-term loan (5 or more years) granted by a
bank or other financial institution that is a resident of the other
Contracting State.
4. Notwithstanding the provisions of paragraphs 2 and 3, interest
arising in one of the Contracting States that is determined by reference
to the profits of the issuer or of one of its associated enterprises and
that is beneficially owned by a resident of the other Contracting State
may be taxed in the State in which it arises, and according to the laws of
that State, but the tax so charged shall not exceed the rate prescribed in
paragraph 2 of Article 10 (Dividends).
5. The term "interest" as used in this Convention means income from
debt-claims of every kind, whether or not secured by mortgage, and,
subject to paragraph 5 of Article 10 (Dividends), 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 or prizes attaching to such securities, bonds, or debentures, as
well as all other income assimilated to income from money lent by the
taxation law of the State in which the income arises.
6. The provisions of paragraphs 1, 2, and 4 shall not apply if the
beneficial owner of the interest, being a resident of a Contracting State,
carries on or has carried on business in the other Contracting State, in
which the interest arises, 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 debt-claim
in respect of which the interest paid is effectively connected with such
permanent establishment or fixed base. In such case the provisions of
Article 7 (Business Profits) or Article 15 (Independent Personal
Services), as the case may be, shall apply.
7. For purposes of this Article, interest shall be deemed to arise in
a Contracting State when the payer is that State itself or a political or
administrative subdivision, local authority, or resident of that State.
Where, however, the person paying the interest, whether a resident of a
Contracting State or not, has in a Contracting State a permanent
establishment or a fixed base and such interest is borne by such permanent
establishment or fixed base, then such interest shall be deemed to arise
in the State in which the permanent establishment or fixed base 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 that 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 the Convention.
ARTICLE 12
Branch Tax
1. A corporation that is a resident of Portugal may be subject in the
United States to a tax in addition to the tax allowable under the other
provisions of this Convention. Such tax, however, may be imposed only on:
(a) the portion of the business profits of the corporation
attributable to a permanent establishment in the United States, or subject
to tax in the United States under Article 6 (Income from Immovable
Property (Real Property)) or paragraph 1 of Article 14 (Capital Gains),
that represents the "dividend equivalent amount," as defined in section
884 of the Internal Revenue Code, as it may be amended from time to time
without changing the general principle thereof; and
(b) the excess, if any, of interest deductible in the United States in
computing the business profits attributable to a permanent establishment
in the United States or taxable in the United States under Article 6
(Income from Immovable Property (Real Property)) or paragraph 1 of Article
14 (Capital Gains), over the interest paid by the permanent establishment
or trade or business in the United States.
2. The rate of the tax referred to in paragraph 1(a) shall not exceed
the rate specified in paragraph 2 or, when applicable, paragraph 3 of
Article 10 (Dividends). The rate of the tax referred to in paragraph 1(b)
shall not exceed 5 percent in the case of a bank that is a resident of
Portugal and 10 percent in all other cases.
ARTICLE 13
Royalties
1. Royalties arising in a Contracting State and paid to a resident of
the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State
in which they arise, and according to the laws of that State, but if the
beneficial owner of the royalties is a resident of the other Contracting
State, the tax so charged shall not exceed 10 percent of the gross amount
of the royalties. The competent authorities of the Contracting States
shall by mutual agreement settle the mode of application of this
limitation.
3. The term "royalties" as used in this Convention 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
cinematographic films, or films, tapes, and other means of image or sound
reproduction, any patent, trademark, design, or model, plan, secret
formula, or process, or other like right or property, or for the use of or
the right to use, industrial, commercial, or scientific equipment, or for
information concerning industrial, commercial, or scientific experience.
It also includes payments for technical assistance performed in a
Contracting State by a resident of the other State where such assistance
is related to the application of any such right or property. The term
"royalties" also includes gains derived from the use of such right or
property in the case of an alienation of such right or property to the
extent that such gains are contingent on the productivity, use, or
disposition thereof.
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 or has carried on business in the other Contracting
State, in which the royalties arise, 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
right or property in respect of which the royalties are paid is
effectively connected with such permanent establishment or fixed base. In
such case the provisions of Article 7 (Business Profits) or Article 15
(Independent Personal Services), as the case may be, shall apply.
5. For purposes of this Article, royalties shall be deemed to arise in
a Contracting State when the payer is that State itself, a political or
administrative subdivision, local authority, or resident of that State.
Where, however, the person paying the royalties, whether a resident of one
of the Contracting States or not, has in one of the Contracting States a
permanent establishment or fixed base in connection with which the
liability to pay the royalties was incurred, and the royalties are
borne by the permanent establishment or fixed base, then the royalties
shall be deemed to arise in the State in which the permanent establishment
or fixed base is situated. Where the person paying the royalties is not a
resident of either Contracting State, and the royalties are not borne
by a permanent establishment or fixed base in either Contracting State,
but the royalties relate to the use of, or the right to use, in one of the
Contracting States, any property or right described in paragraph 3, the
royalties shall be treated as arising in that State.
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 the Convention.
ARTICLE 14
Capital Gains
1. Gains derived by a resident of a Contracting State from the
alienation of immovable property (real property) situated in the other
Contracting State may be taxed in that other State.
2. For the purposes of paragraph 1, immovable property situated in
Portugal includes stock, participations, or other rights in a company or
other legal person the property of which consists, directly or indirectly,
principally of immovable property Situated in Portugal; and real property
situated in the United States includes a United States real property
interest.
3. Gains from the alienation of movable (personal) property forming
part of the business property of a permanent establishment that an
enterprise of a Contracting State has or had in the other Contracting
State, or of movable property pertaining to a fixed base that is or was
available to a resident of a Contracting State in the other Contracting
State for the purpose of performing independent personal services,
including gains from the alienation of such a permanent establishment
(alone or with the whole enterprise) or such a fixed base, may be taxed in
that other State.
4. Gains derived by an enterprise of a Contracting State from the
alienation of ships or aircraft operated in international traffic or
movable property pertaining thereto shall be taxable only in that State.
5. Gains described in the last sentence of paragraph 3 of Article 13
(Royalties) shall be taxable only in accordance with the provisions of
Article 13.
6. Gains from the alienation of any property other than property
referred to in paragraphs 1 through 5 shall be taxable only in the
Contracting State of which the alienator is a resident.
ARTICLE 15
Independent Personal Services
1. Income derived by 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 or had 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 or was attributable to that
fixed base may be taxed in that other 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 in any
12-month period commencing or ending in the taxable year concerned; in
that case, only so much of the income as is derived from his activities
performed in that other State may be taxed in that other 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 16
Dependent Personal Services
1. Subject to the provisions of Articles 18 (Directors Fees), 19
(Artistes and Sportsmen), 20 (Pensions, Annuities, Alimony, and Child
Support), 21 (Government Service), 22 (Teachers and Researchers), and 23
(Students and Trainees), 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 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 State for a period or
periods not exceeding in the aggregate 183 days in any 12-month period
commencing or ending in the taxable 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 by a resident of a Contracting State in respect of an
employment as a member of the regular complement of a ship or aircraft
operated in international traffic shall be taxable only in that State.
ARTICLE 17
Limitation on Benefits
1. A resident of a Contracting State shall be entitled to the benefits
of this Convention only if such person is:
(a) an individual; or
(b) a Contracting State, a political or administrative subdivision or
local authority thereof, or an institution or organization wholly owned by
them; or
(c) a company
(i) that is a resident of a Contracting State in whose principal class
of shares there is substantial and regular trading on a recognized
securities exchange, or
(ii) more than 50 percent of each class of whose shares is owned by
companies that are residents of either Contracting State, in whose
principal class of shares there is substantial and regular trading on a
recognized securities exchange, or by persons referred to in subparagraph
(b); or
(d) an organization, trust, or other arrangement referred to in
subparagraph 3(b) of the Protocol, provided that more than half of the
members, participants, or beneficiaries, if any, in such organization,
trust, or arrangement are residents of that Contracting State who are
entitled, under this Article, to the benefits of this Convention; or
(e) a person with respect to which both of the following conditions
are satisfied:
(i) the ultimate beneficial owners of more than 50 percent of the
beneficial interest in such person (or, in the case of a company, more
than 50 percent of the vote and value of each class of the company's
shares) are persons entitled to the benefits of this Convention under this
paragraph or citizens of the United States; and
(ii) less than 50 percent of the gross income of such parson is used,
directly or indirectly, to meet liabilities (including liabilities for
interest or royalties) other than to persons entitled to the benefits of
this Convention under this paragraph or citizens of the United States.
2. A resident of a Contracting State that is not entitled to the
benefits of this Convention under paragraph 1 shall, nevertheless, be
entitled to the benefits of this Convention with respect to an item of
income derived from the other State, if:
(a) the resident is engaged in the active conduct of a trade or
business in the firstmentioned State (other than the business of making or
managing investments, unless these activities are banking or insurance
activities carried on by a bank or insurance company); and
(b) the item of income is connected with or incidental to the trade or
business in the first-mentioned State; and
(c) such trade or business is substantial in relation to the activity
in the other State that generated the income.
3. A person that is not entitled to the benefits of the Convention
pursuant to the provisions of paragraph 1 or 2 may, nevertheless, be
granted the benefits of the Convention if the competent authority of the
State in which the income in question arises so determines. For this
purpose, one of the factors the competent authorities shall take into
account is whether the establishment, acquisition, and maintenance of such
person and the conduct of its operations did not have as one of its
principal purposes the obtaining of benefits under the Convention.
4. For purposes of subparagraph (c) of paragraph 1, the term
"recognized securities exchange" means:
(a) the NASDAQ System owned by the National Association of Securities
Dealers, Inc. and any stock exchange registered with the Securities and
Exchange Commission as a national securities exchange for purposes of the
Securities Exchange Act of 1934;
(b) the Lisbon and Oporto Stock Exchanges; and
(c) any other stock exchange agreed upon by the competent authorities
of the Contracting States.
5. For purposes of subparagraph (e) (ii) of paragraph 1, the term
"gross-income" means gross receipts, or, where an enterprise is engaged in
a business which includes the manufacture or production of goods, gross
receipts reduced by the direct costs of labor and materials attributable
to such manufacture or production and paid or payable out of such
receipts.
6. Notwithstanding the provisions of paragraphs 1 through 5, the
benefits of this Convention shall not be allowed to any person that is
entitled to income tax benefits under the provisions of the legislation
and other measures relating to the tax-free zones (zones francas) of
Madeira and Santa Maria Island, or to benefits similar to those provided
with respect to such tax-free zones that are made available under any
legislation or other measure adopted by either Contracting State after the
date of signature of this Convention. The competent authorities shall
notify each other of any such legislation or measure and shall consult as
to whether such benefits are similar.
ARTICLE 18
Directors' Fees
Directors' fees and other similar payments derived by a resident of a
Contracting State for services performed outside that Contracting State in
his capacity as a member of the board of directors or supervisory board
(in Portugal, conselho fiscal) or of another similar organ of a company
that is a resident of the other Contracting State may be taxed in that
other State.
ARTICLE 19
Artistes and Sportsmen
1. Notwithstanding the provisions of Articles 15 (Independent Personal
Services) and 16 (Dependent Personal Services), 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 an
athlete, from his personal activities as such exercised in the other
Contracting State, may be taxed in that other State except where the
amount of the compensation derived by such entertainer or athlete,
including expenses reimbursed to him or borne on his behalf, from such
activities does not exceed 10,000 United States dollars or its equivalent
in Portuguese escudos for the taxable year concerned.
2. Where income in respect of personal activities exercised by an
entertainer or an athlete in his capacity as such accrues not to the
entertainer or athlete but to another person, that income of that other
person may, notwithstanding the provisions of Articles 7 (Business
Profits) and 15 (Independent Personal Services), be taxed in the
Contracting State in which the activities of the entertainer or athlete
are exercised, unless it is established that neither the entertainer or
athlete nor persons related thereto participate directly or indirectly in
the profits of that other person in any manner, including the receipt of
deferred remuneration, bonuses, fees, dividends, partnership
distributions, or other distributions.
3. Notwithstanding the provisions of paragraphs 1 and 2, income
derived by a resident of a Contracting State as an entertainer or athlete
shall be exempt from tax by the other Contracting State if the visit to
that other State is substantially supported by public funds of the
firstmentioned State or a political or administrative subdivision or local
authority thereof.