LegalizeResolução da Assembleia da República n.º 25/97 — Aprova, para ratificação, a Convenção entre a República Portuguesa e a República da Coreia para Evitar a Dupla…
Este é o ato tal como foi publicado. As alterações posteriores não estão incorporadas no texto: cada uma é um ato autónomo neste repositório e uma entrada no historial desta lei.
Aprova, para ratificação, a Convenção entre a República Portuguesa e a República da Coreia para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Imposto sobre o Rendimento, assinada em Seul em 26 de Janeiro de 1996
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. However, in the following circumstances, such income may be taxed in the other Contracting State, that is to say:
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 State; or
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 twelve month period commencing or ending in the fiscal year concerned.
2 - The term «professional services» includes especialy 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, 20 and 21, salaries, wages and other similiar 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:
The recipient is present in the other 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
The remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and
The remuneration is not borne by a permanent establishment or a fixed base wich the employer has in the other State.
3 - Notwithstanding the preceding provisions of this article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in internacional traffic by an enterprise of a Contracting State shall be taxable only in that 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 (in Portugal, conselho fiscal), or of another similar organ of a company which is a resident of the other Contracting State may be taxed in that other State, provided that remuneration paid by that company to a member of its organs in respect of the exercise of a daily activity shall be taxable according to the provisions of article 15.
Article 17
Artists and sportsmen
1 - Notwithstanding the provisions of articles 14 and 15, income derived be a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artist, or a musician, or as a sportsman, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2 - Where income in respect of personal activities exercised by an entertainer or a sportsman in his capacity as such accrues not to the entertainer or sportsman himself but to another person, that income may, notwithstanding the provisions of articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsman are exercised.
3 - Notwithstanding the provisions of paragraphs 1 and 2 of this article, income derived by entertainers or sporstmen who are residents of a Contracting State from the activities exercised in the other Contracting State under a special programme of cultural exchange agreed upon between the governments of both Contracting States, shall be exempt from tax in that other 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 - a) Remuneration, other than a pension, 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 of subdivision or authority shall be taxable only in that State.
However, such 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:
Is a national of that State; or
ii) Did not become a resident of that State solely for the purpose of rendering the services.
2 - a) Any pension 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 rederend to that State or subdivision or 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 pension 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 and 18 shall apply to remuneration and pensions 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.
4 - The provisions of paragraphs 1 and 2 of this article shall likewise apply in respect of remuneration or pensions paid by:
In the case of Korea, the Bank of Korea, the Korean Export-Import Bank, the Korea Development Bank, and the Korea Trade Promotion Corporation; and
In the case of Portugal, the Bank of Portugal, the Caixa Geral de Depósitos, the Banco Nacional Ultramarino (BNU), the Bank for the External Development (BFE), the Banco Borges e Irmão, the ICEP - Investment, Trade and Tourism of Portugal, and the COSEC - Credit Insurance Company.
Article 20
Students and apprentices
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 this maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
Article 21
Professors and teachers
An individual who is or was a resident of a Contracting State immediately before making a visit to the other Contracting State, who, at the invitation of any university, college, school, or other similar educational or scientific research institution which is recognised as non-profitable by the Government of that State, or under an official programme of cultural exchange, visits that other State for a period not exceeding two years from the date of his first arrival in that other State, solely for the purpose of theaching or research or both at such institution shall be exempt from tax in that other State on his remuneration for such teaching or research.
Article 22
Other income
1 - Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing articles of this Convention shall be taxable only in that State.
2 - The provisions of paragraph 1 shall not apply to 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.
CHAPTER IV
Methods for elimination of double taxation
Article 23
Methods for elimination of double taxation
1 - In the case of a resident of Korea, double taxation shall be avoided as follows:
Subject to the provisions of Korean tax law regarding the allowance as a credit against Korean tax of tax payable in any country other than Korea (which shall not affect the general principle hereof), the Portuguese tax payable (excluding, in the case of dividends, tax payable in respect of the profits out of which the dividends are paid) under the laws of Portugal and in accordance with this Convention, whether directly or by deduction, in respect of income from sources within Portugal shall be allowed as a credit against the Korean tax payable in respect of that income. The credit shall not, however, exceed that proportion of the Korean tax which the income from sources whithin Portugal bears to the entire income subject do Korean tax.
2 - In the case of a resident of Portugal, double taxation shall be avoided as follows:
When a resident of Portugal derives income which, in accordance with the provisions of this Convention, may be taxed in Korea, the Portuguese Republic shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Korea; such deduction shall not, however, exceed that part of the income tax as computed before the deduction is given, which is attributable to the income which may be taxed in Korea; and
When in accordance with any provision of the Convention income derived by a resident of Portugal is exempt from tax in this State, Portugal may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
3 - For the purpose of paragraphs 1 and 2 of this article, the expressions «Portuguese tax payable» in paragraph 1 or «income tax paid in Korea» in paragraph 2 shall be deemed to include any amount which would have been paid as Portuguese tax or Korean tax, as the case may be, but for the exemption, deduction or reduction of tax under the laws in force in the respective Contracting State.
CHAPTER V
Special provisions
Article 24
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 nations of that other State in the same circumstances are or may be subjected. This provision shall, notwhithstanding the provisions of article 1, also apply to persons who are not residents of one or both of the Contracting States.
2 - The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activites. This provision 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 responsabilities which it grants to its own residents.
3 - Except where the provisions of article 9, paragraph 7 of article 11, or paragraph 6 of article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned 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, notwithstading the provisions of article 2, apply to taxes of every kind and description.
Article 25
Mutual agreement procedure
1 - Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of article 24, to that of the Contracting State of which he is a national. The case must be presented within two years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention.
2 - The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention.
3 - The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any dificulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.
4 - The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. When it seems advisable in order to reach agreement to have an oral exchange of opinions, such exchange may take place through a Commission consisting of representatives of the competent authorities of the Contracting States.
Article 26
Exchange of information
1 - The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Convention and of the domestic laws of the Contracting States concerning taxes covered by this Convention insofar as the taxation thereunder is in accordance with this Convention. Any information so exchanged shall be treated as secret and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of the taxes covered by the Convention. 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.
2 - In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
To carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
To supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
To supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
Article 27
Diplomatic agents and consular officers
Nothing in this Convention shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
CHAPTER VI
Final provisions
Article 28
Entry into force
1 - This Convention shall be ratified and the instruments of ratification shall be exchanged at ... as soon as possible. The Convention shall enter into force on the thirtieth day after the date of exchange of the instruments of ratification.
2 - This Convention shall have effect:
In Korea:
In respect of taxes withheld at the source on or after the first day of January in the year next following that in which this Convention enters into force; and
ii) In respect of other taxes for any taxable year beginning on or after the first day of January in the year next following that in which this Convention enters into force;
In Portugal:
In respect of taxes whithheld at source, the fact giving rise to them appearing on or after the first day of January in the year next following that in which this Convention enters into force; and
ii) In respect of others taxes as to income arising in any fiscal year beginning on or after the first day of January in the year next following that in which this Convention enters into force.
Article 29
Termination
This Convention shall remain in force indefinitely but either of the Contracting States may, on or before the thirthieth day of June in any calendar year from the third year following that in which the instruments of ratification have been exchanged, give to the other Contracting State, through diplomatic channels, written notice of termination and in such event, this Convention shall cease to have effect:
In Korea:
In respect of taxes withheld at the source on or after the first day of January in the year next following that in which the notice is given; and
ii) In respect of other taxes for the taxable year beginning on or after the first day of January in the year next following that in which the notice is given;
In Portugal:
In respect of taxes withheld at source, the fact giving rise to them appearing on or after the first day of January in the year next following the date on which the period specified in the said notice of termination expires; and
ii) In respect of other taxes as to income arising in the fiscal year beginning on or after the first day of January in the year next following the date on which the period specified in the said notice of termination expires.
In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Convention.
Done in duplicate at Seoul this 26th day of January of the year one thousand nine hundred and ninety six in the Portuguese, Korean and English languages, all texts being equally authentic. In case of divergency of interpretation, the English text shall prevail.
For the Government of the Portuguese Republic:
Manuel Gervásio Leite.
For the Government of the Republic of Korea:
Gong Ro-Myung.
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