LegalizeResolução da Assembleia da República n.º 28/2000 — Aprova, para ratificação, a Convenção entre o Governo da República Portuguesa e o Governo da República Popular da China…
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 o Governo da República Portuguesa e o Governo da República Popular da China para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento e respectivo Protocolo, assinados em Beijing em 21 de Abril de 1998
vi) Any other institution wholly owned by the Government of China or an administrative subdivision or a local authority thereof as may be agreed from time to time between the competent authorities of the Contracting States;
In Portugal:
The Government of the Portuguese Republic, an administrative subdivision or a local authority thereof;
ii) The General Deposits Bank (Caixa Geral de Depósitos - CGD);
iii) The National Overseas Bank (Banco Nacional Ultramarino - BNU);
iv) Investment, Trade and Tourism of Portugal (ICEP - Investimentos, Comércio e Turismo de Portugal);
Any other institution wholly owned by the Government of Portugal or an administrative subdivision or a local authority hereof as may be agreed from time to time between the competent authorities of the Contracting States.
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 that State, an administrative subdivision or a local authority thereof or a resident of that Contracting State. Where, however, the person paying the interest, 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 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 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.
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 copyright of literary, artistic or scientific work including cinematographic films, or films or tapes for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial, or scientific equipment, or for information concerning industrial, commercial or scientific experience.
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 that Contracting State, an administrative subdivision or a local authority thereof 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 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 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 with the whole enterprise) or of such fixed base, may be taxed in that other State.
3 - Gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft shall be taxable only in that Contracting State.
4 - Gains from the alienation of shares of the capital stock of a company the property of which consists principally of immovable property situated in a Contracting State may be taxed in that Contracting State.
5 - Gains from the alienation of any property other than that referred to in paragraphs 1 to 4, shall be taxable only in the Contracting State of which the alienator is a resident.
Article 14
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 one of the following circumstances, when such income may also be taxed in the other Contracting State:
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;
If his stay in the other Contracting State is for a period or periods amounting to or exceeding in the aggregate 183 days in the calendar 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 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:
The recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in the calendar year concerned; and
The remuneration is paid by, or on behalf of, an employer who is not a resident of the other Contracting State; and
The remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other Contracting 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
Director's fees
1 - Director's fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.
2 - Salaries, wages and other similar remuneration derived by a resident of a Contracting State in his capacity as an official in a top-level managerial position of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.
Article 17
Artists and sportsmen
1 - Notwithstanding the provisions of articles 14 and 15, income derived by 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 Contracting 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 mentioned in this article shall be exempt from tax in the Contracting State in which the activity of the entertainer or sportsman is exercised provided that this activity is mainly supported by this Contracting State or by the other Contracting State or the activity is exercised under a cultural agreement or arrangement between the Contracting States.
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 Contracting State.
Article 19
Government service
1 - a) Salaries, wages and other similar remuneration, other than a pension, paid by the Government of a Contracting State or an administrative subdivision or a local authority thereof to an individual in respect of services rendered to that Contracting State or subdivision or authority thereof shall be taxable only in that Contracting 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 other Contracting State and the individual is a resident of that other Contracting State who:
Is a national of that Contracting State; or
ii) Did not become a resident of that Contracting State solely for the purpose of rendering the services.
2 - a) Any pension paid by, or out of funds created by the Government of a Contracting State or an administrative subdivision or a local authority thereof to an individual in respect of services rendered to that Contracting State or subdivision or authority thereof shall be taxable only in that Contracting 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 other Contracting State.
3 - The provisions of articles 15, 16, 17 and 18, shall apply to salaries, wages and other similar remuneration, and to pensions, in respect of services rendered in connection with a business carried on by the Government of a Contracting State or an administrative subdivision or a local authority thereof.
Article 20
Teachers and researchers
1 - An individual who is, or immediately before visiting a Contracting State, was a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of teaching, giving lectures or conducting research at a university, college, school or other similar educational institution or scientific research institution accredited by the Government of the first-mentioned Contracting State and is recognised as non-profitable by that Government of the first-mentioned Contracting State or under an official programme of cultural exchange shall be exempt from tax in the first-mentioned Contracting State, for a period of three years from the date of his first arrival in the first-mentioned Contracting State, in respect of remuneration for such teaching, lectures or research.
2 - The exemption granted under paragraph 1 shall not apply to income from research if such research is undertaken not in the public interest but primarily for the private benefit of a specific person or persons.
Article 21
Students and trainees
A student, business apprentice or trainee 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 shall be exempt from tax in that first-mentioned State on the following payments or income received or derived by him for the purpose of his maintenance, education or training:
Payments derived from sources outside that Contracting State for the purpose of his maintenance, education, study, research or training;
Grants, scholarship or awards supplied by the Government, or a scientific, educational, cultural or other tax-exempt organisation.
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 Agreement shall be taxable only in that Contracting 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.
Article 23
Methods for the elimination of double taxation
In China, double taxation shall be eliminated as follows:
Where a resident of China derives income from Portugal, the amount of tax on that income payable in Portugal in accordance with the provisions of this Agreement, may be credited against the Chinese tax imposed on that resident. The amount of the credit, however, shall not exceed the amount of the Chinese tax on that income computed in accordance with the taxation laws and regulations of China;
Where the income derived from Portugal is a dividend paid by a company which is a resident of Portugal to a company which is a resident of China and which owns not less than 10 per cent of the shares of the company paying the dividend, the credit shall take into account the tax paid to Portugal by the company paying the dividend in respect of its income.
2 - In Portugal, double taxation shall be eliminated as follows:
Where a resident of Portugal derives income which, in accordance with the provisions of this Agreement, may be taxed in China, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in China, 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 China; and
Where in accordance with any provision of this Agreement 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 - The tax paid in a Contracting State mentioned in paragraphs 1 and 2 shall be deemed to include the tax which would have been payable but for the legal provisions concerning tax reduction, exemption or other tax incentives for a limited period of time in accordance with the laws of that State for the promotion of economic development.
The provisions of this paragraph shall apply only to the income foreseen in articles 7, 10, 11 and 12 and for the period of the first ten years during which this Agreement is effective. This period may be extended by mutual agreement between the competent authorities of the Contracting States.
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 nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding 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 activities. 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 responsibilities which it grants to its own residents.
3 - Except where the provisions of paragraph 1 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, notwithstanding 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 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 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 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 the 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. They may also consult together for the elimination of double taxation in cases not provided for in 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 paragraphs 2 and 3 When it seems advisable for reaching agreement, representatives of the competent authorities of the Contracting States may meet together for an oral exchange of opinions.
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 Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement, insofar as the taxation thereunder is not contrary to the Agreement, in particular for the prevention of evasion or avoidance of such taxes. The exchange of information is not restricted by article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that Contracting 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, or the determination of appeals in relation to, the taxes covered by the Agreement. 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 (public order).
Article 27
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 28
Entry into force
This Agreement shall enter into force on the thirtieth day after the date on which diplomatic notes indicating the completion of internal legal procedures necessary in each country for the entry into force of this Agreement have been exchanged. This Agreement shall have effect:
In China:
In respect of income derived during the taxable years beginning on or after the first day of January in the calendar year next following that in which this Agreement enters into force;
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 calendar year next following that in which this Agreement enters into force; and
ii) In respect of other taxes, as to income arising in any fiscal year beginning on or after the first day of January in the calendar year next following that in which this Agreement enters into force.
Article 29
Termination
This Agreement shall continue in effect indefinitely but either of the Contracting States may, on or before the thirtieth day of June in any calendar year beginning after the expiration of a period of five years from the date of its entry into force, give written notice of termination to the other Contracting State through the diplomatic channels. In such event, this Agreement shall cease to have effect:
In China:
In respect of income derived during the taxable years beginning on after the first day of January in the calendar year next following that in which the notice of termination 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 calendar year next following that in which the notice of termination is given;
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 calendar year next following that in which the notice of termination is given.
In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
Done in duplicate at Beijing this 21st day of April of the year 1998 in the Portuguese, Chinese 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:
(ver assinatura no documento original)
For the Government of the People's Republic of China:
(ver assinatura no documento original)
PROTOCOL
At the signature of the Agreement between the Government of the Portuguese Republic and the Government of the People's Republic of China for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, the undersigned have agreed upon the following provisions which shall form an integral part of the Agreement:
With reference to article 24
The provisions of article 24 do not preclude the application of any provisions of the tax law of the Contracting States dealing with thin capitalization problems.
The provisions of article 24 shall be construed in the sense that insofar as the deductibility of the incurred disbursement is incurred, each Contracting State may apply its own procedure regarding the burden of proof.
In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
Done in duplicate at Beijing this 21st day of April of the year 1998 in the Portuguese, Chinese 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:
(ver assinatura no documento original)
For the Government of the People's Republic of China:
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