AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE's REPUBLIC OF CHINA AND THE GOVERNMENT OF THE CZECHOSLOVAK SOCIALIST REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION W
颁布时间:1987-06-11
The Government of the People's Republic of China and the Government of
the Czechoslovak Socialist Republic
Desiring to conclude an Agreement for the Avoidance of double Taxation
and the Prevention of Fiscal Evasion with Respect to Taxes on Income,
Have agreed as follows:
Article 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both
of the Contracting States.
Article 2 Taxes Covered
1. This Agreement shall apply to taxes on income imposed on behalf of
a Contracting State or of its political subdivisions or local authorities,
irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on
total income or on elements of income, including taxes on gains from the
alienation of movable or immovable property, as well as taxes on capital
appreciation.
3. The existing taxes to which the Agreement shall apply are:
(a) in the Czechoslovak Socialist Republic:
(i) the taxes on profits;
(ii) the wages tax;
(iii) the tax on income from literary and artistic activities;
(iv) the agricultural profits tax;
(v) the tax on population income; and
(vi) the house rental tax,
(hereinafter referred to as "Czechoslovak tax");
(b) in the People's Republic of China:
(i) the individual income tax;
(ii) the income tax concerning joint ventures with Chinese and
foreign investment;
(iii) the income tax concerning foreign enterprises; and
(iv) the local income tax,
(hereinafter referred to as "Chinese tax").
4. This Agreement shall also apply to any identical or substantially
similar taxes which are imposed after the date of signature of this
Agreement in addition to, or in place of, the existing taxes. The
competent authorities of the Contracting States shall notify each other of
any significant changes which have been made in their respective taxation
laws.
Article 3 General Definitions
1. In this Agreement, unless the context otherwise requires:
(a) the term "Czechoslovakia" means the Czechoslovak Socialist
Republic;
(b) the term "China" means the People's Republic of China;
(c) the terms " a Contracting State" and "the other Contracting State"
mean Czechoslovakia or China as the context requires;
(d) the term "tax" means Czechoslovak tax or Chinese tax, as the
context requires;
(e) the term "person" comprises an individual, a company and any other
body of persons;
(f) the term "company" means any body corporate or any entity which is
treated as a body corporate for tax purposes;
(g) the terms "enterprise of a Contracting State" and "enterprise of
the other Contracting State" mean, respectively, an enterprise carried on
by a resident of a Contracting State and an enterprise carried on by a
resident of the other Contracting State;
(h) the term "nationals" means all individuals possessing the
nationality of a Contracting State and all juridical persons created or
organized under the laws of that Contracting State, as well as any
organizations without juridical personality treated for tax purposes as
juridical persons created or organized under the laws of that Contracting
State;
(i) the term "international traffic" means any transport by a ship or
aircraft operated by an enterprise which has its place of head office (i.
e. effective management) in a Contracting State, except when the ship or
aircraft is operated solely between places in the other Contracting State;
(j) the term "competent authority" means:
(i) in the case of Czechoslovakia, the Minister of Finance of the
Czechoslovak Socialist Republic or his authorized representative;
(ii) in the case of China, the Ministry of Finance of the People's
Republic of China or its authorized representative.
2. In the application of this Agreement by a Contracting State, any
term not otherwise defined shall, unless the context otherwise requires,
have the meaning which it has under the laws of that Contracting State
concerning the taxes to which the Agreement applies.
Article 4 Resident
1. For the purposes of this Agreement, the term "resident of a
Contracting State" means any person who, under the laws of that
Contracting State, is liable to tax therein by reason of his domicile,
residence, place of head office (i. e. effective management) or any other
criterion of a similar nature.
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
in accordance with the following rules:
(a) he shall be deemed to be a resident of the Contracting State in
which he has a permanent home available to him. If he has a permanent home
available to him in both Contracting States he shall be deemed to be a
resident of the Contracting State with which his personal and economic
relations are closer (centre of vital interests);
(b) if the Contracting State in which he has centre of vital interests
cannot be determined, or if he has no permanent home available to him in
either Contracting State, he shall be deemed to be a resident of the
Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States or in
neither of them, he shall be deemed to be a resident of the Contracting
State of which he is a national;
(d) if he is a national of both Contracting States or 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 person other
than an individual is a resident of both Contracting States, then it shall
be deemed to be a resident of the Contracting State in which its place of
head office (i. e. effective management) is situated.
Article 5 Permanent Establishment
1. For the purposes of this Agreement, the term "permanent
establishment" means a fixed place of business through which the business
of an enterprise is wholly or partly carried on.
2. The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of
extraction of natural resources.
3. The term "permanent establishment" likewise encompasses:
(a) a building site, construction, assembly or installation project or
supervisory activities in connection therewith, but only where such site,
project or activities continue for a period of more than 6 months;
(b) consultancy services, by an enterprise of a Contracting State
through employees or other personnel engaged in the other Contracting
State, provided that such activities continue for the same project or a
connected project for a period or periods aggregating more than 6 months
within any 12 month period.
4. Notwithstanding the provisions of paragraphs 1 to 3, 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 enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to
the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to
the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the
purpose of purchasing goods or merchandise, or of collecting information,
for the enterprise;
(e) the maintenance of a fixed place of business solely for the
purpose of carrying on, for the enterprise, any other activity of a
preparatory or auxiliary character.
(f) an assembly services carried on by an enterprise of a Contracting
State in connection with sale of machinery or equipment from that
Contracting State to the other Contracting State.
5. Notwithstanding the provisions of paragraphs 1 and 2, where a
person other than an agent of an independent status to whom the provisions
of paragraph 6 apply is acting in a Contracting State on behalf of an
enterprise of the other Contracting State, has and habitually exercises an
authority to conclude contracts in the name of the enterprise, that
enterprise shall be deemed to have a permanent establishment in the
first-mentioned Contracting State in respect of any activities which that
person undertakes for the enterprise, unless the activities of such person
are limited to those mentioned in paragraph 4 which, if exercised through
a fixed place of business, would not make this fixed place of business a
permanent establishment under the provisions of that paragraph.
6. An enterprise 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 Contracting 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. However, when the activities of such an agent are devoted wholly
or almost wholly on behalf of that enterprise, he will not be considered
an agent of an independent status within the meaning of this paragraph.
7. The fact that a company which is a resident of a Contracting State
controls 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 make either company a permanent establishment of the other.
Article 6 Income from Immovable Property
1. Income derived by a resident of a Contracting State from immovable
property (including income from agriculture or forestry) situated in the
other Contracting State may be taxed in that other Contracting State.
2. (a) the term "immovable property" shall, subject to the provisions
of sub-paragraphs (b) and (c), be defined in accordance with the law of
the Contracting State in which the property in question is situated;
(b) the term "immovable property" shall in any case include property
accessory to immovable property, livestock and equipment used in
agriculture and forestry, rights to which the provisions of general law
respecting immovable property apply, usufruct of immovable property and
rights to variable or fixed payments as consideration for the working of,
or the right to work, mineral deposits, sources and other natural
resources;
(c) ships and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall apply to income derived from
the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income
from immovable property of an enterprise and to income from immovable
property used for the performance of independent personal services.
Article 7 Business Profits
1. The profits of an enterprise of a Contracting State shall be
taxable only in that State unless the enterprise carries on business in
the other Contracting State through a permanent establishment situated
therein. If the enterprise carries on business as aforesaid, the profits
of the enterprise may be taxed in the other State but only so much of them
as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a
Contracting State carries 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
profits which it might be expected to make if it were a distinct and
separate enterprise engaged in the same or similar activities under the
same or similar conditions and dealing wholly independently with the
enterprise of which it is a permanent establishment.
3. In the determination of the profits of a permanent establishment,
there shall be allowed as deductions expenses which are incurred for the
purposes of the permanent establishment, including executive and general
administrative expenses so incurred, whether in the State in which the
permanent establishment is situated or elsewhere. However, no such
deduction shall be allowed in respect of amounts, if any, paid (otherwise
than towards reimbursement of actual expenses) by the permanent
establishment to the head office of the enterprise or any of its other
offices, 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, except in the case of a banking
enterprise, by way of interest on moneys lent to the permanent
establishment. Likewise, no account shall be taken, in the determination
of the profits of a permanent establishment, for amounts charged
(otherwise than towards reimbursement of actual expenses), by the
permanent establishment to the head office of the enterprise or any of its
other offices, 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, except in the case of a
banking enterprise by way of interest on moneys lent to the head office of
the enterprise or any of its other offices.
4. Insofar as it has been customary in a Contracting State to
determine the profits to be attributed to a permanent establishment on the
basis of an apportionment of the total profits of the enterprise to its
various parts, nothing in paragraph 2 shall preclude that Contracting
State from determining the profits to be taxed by such an apportionment as
may be customary. The method of apportionment adopted shall, however, be
such that the result shall be in accordance with the principles laid down
in this Article.
5. No profits shall be attributed to a permanent establishment by
reason of the mere purchase by that permanent establishment of goods or
merchandise for the enterprise.
6. For the purposes of the preceding paragraphs, the profits to be
attributed to the permanent establishment, shall be determined by the same
method year by year unless there is good and sufficient reason to the
contrary.
7. Where profits include items of income which are dealt with
separately in other Articles of this Agreement, then the provisions of
those Articles shall not be affected by the provisions of this Article.
Article 8 Shipping and Air Transport
1. profits from the operation of ships or aircraft in international
traffic be taxable only in the Contracting State in which the place of
head office (i. e. effective management) of the enterprise is situated.
2. If the place of head office (i. e. effective management) of a
shipping enterprise is aboard a sip, then it shall be deemed to be
situated in the Contracting State in which the home harbour of the ship is
situated, or if there is no such home harbour, in the Contracting State of
which the operator of the ship is a resident.
3. The provisions of paragraph 1 shall also apply to profits from the
participation in a pool, a joint business or an international operating
agency.
Article 9 Associated Enterprises
1. Where
(a) an enterprise of a Contracting State participates directly or
indirectly in the management, control or capital of an enterprise of the
other Contracting State, or
(b) 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 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 the profits so included are profits which
would have accrued to the enterprise of the first-mentioned 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
tax charged therein on those profits. In determining such adjustment, due
regard shall be had to the other provisions of this Agreement and the
competent authorities of the Contracting States shall, if necessary,
consult each other.
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 recipient is the beneficial
owner of the dividends, the tax so charged shall not exceed 10 per cent of
the gross amount of the dividends.
The provisions of 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.
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, or performs in that Contracting State
independent personal services from fixed base situated therein, and the
holding in respect of which the dividends are 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.
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 or a fixed base
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 recipient is the beneficial owner of the interest the tax so
charged shall not exceed 10 per cent of the gross amount of the interest.
3. Notwithstanding the provisions of paragraph 2, interest arising in
a Contracting State and derived by the Government of the other Contracting
State, a political subdivision, a local authority and the Central Bank
thereof or any financial institution wholly owned by that Government, or
by any other resident of that other Contracting State with respect to
debt-claims indirectly financed by the Government of that other
Contracting State, a political subdivision, a local authority and the
Central Bank thereof or any financial institution wholly owned by that
Government, shall be exempt from tax in the first-mentioned State.
4. 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. Penalty charges for late payment shall not be
regarded as interest for the purpose of this Article.
5. 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, or performs in
that other Contracting State independent personal services from a fixed
base situated therein, and the debt-claim in respect of which the interest
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.
6. Interest shall be deemed to arise in a Contracting State when the
payer is the Government of that Contracting State, a political
subdivision, a local authority thereof or a resident of that Contracting
State. Where, however, the person paying the interest, whether he is
resident of a Contracting State or not, has in a Contracting State a
permanent establishment or a fixed base in connection with which the
indebtedness on which the interest is paid was incurred, and such interest
is borne by such permanent establishment or fixed base, then such interest
shall be deemed to arise in the Contracting State in which the permanent
establishment or fixed base is situated.
7. 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 Agreement.
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 State, but if the
recipient is the beneficial owner of the royalties, the tax so charged
shall not exceed 10 per cent 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 article means payments of any
kind received as a consideration for the use of, or the right to use any
patent, trade mark, design or model, plan, secret formula or process, or
any industrial, commercial, or scientific equipment, or for information
concerning industrial, commercial or scientific experience, any copyright
of literary, artistic or scientific work including cinematograph films,
and films or tapes for television or radio broadcasting.
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, 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
royalties are 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.
5. Royalties shall be deemed to arise in a Contracting State when the
payer is the Government of that Contracting State, a political
subdivision, a local authority or 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 or a fixed base in connection with which the liability to
pay the royalties was incurred, and such royalties are borne by such
permanent establishment or fixed base then such royalties shall be deemed
to arise in the Contracting State in which the permanent establishment or
fixed base 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 pay and the beneficial owner in the absence of such
relationship, the provisions of this Article shall apply only to the
last-mentioned amount. In that 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 Agreement.
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 from the alienation of movable property forming part of the
business property of a permanent establishment which an enterprise of a
Contracting State has in the other Contracting State or of movable
property pertaining to a fixed base available to a resident of a
Contracting State in the other Contracting State for the purpose of
performing independent personal services, including such gains from the
alienation of such a permanent establishment (alone or together with the
whole enterprise) or of such a fixed base, may be taxed in that other
Contracting State.
3. Gains from the alienation of ships or aircraft operated in
international traffic and movable property, pertaining to the operation of
such ships or aircraft shall be taxable only in the Contracting State in
which the place of head office (i. e. effective management) of the
enterprise is situated.
4. Gains from the alienation of shares of the capital stock of a
company the property of which consists directly or indirectly principally
of immovable property situated in a Contracting State may be taxed in that
Contracting State.
5. Gains from the alienation of shares other than those mentioned in
paragraph 4 representing a participation of 25 per cent in a company which
is a resident of a Contracting State may be taxed in that Contracting
State.
6. Gains derived by a resident of a Contracting State from the
alienation of any property other than that referred to in paragraphs 1 to
5 and arising in the other Contracting State may be taxed in that other
Contracting State.