LegalizeResolução da Assembleia da República n.º 25/2002 — Aprova, para ratificação, a Convenção entre a República Portuguesa e a República Helénica 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 Helénica para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento, assinada em Lisboa em 2 de Dezembro de 1999
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 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 payment shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
7 - The provisions of this article shall not apply if the debt-claim in respect of which the interest is paid was created or assigned mainly for the purpose of taking advantage of this article and not for bona fide commercial reasons. In such case the amount of interest shall be taxable according to the laws of each Contracting State, due regard being to the other provisions of this Convention.
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 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 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 copyright of literary, artistic or scientific work including cinematograph films and 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. The term «royalties» also includes payments in consideration for technical assistance in connection with the use of or the right to use any copyright goods or information as referred under this paragraph.
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 where the payer is a resident of that 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 fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by that permanent establishment or fixed base, then such royalties shall be deemed to arise in the 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 Convention.
7 - The provisions of this article shall not apply if the right or the property giving rise to the royalties was created or assigned mainly for the purpose of taking advantage of this article and not for bona fide commercial reasons. In such case the amount of royalties shall be taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
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 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 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 the Contracting State in which the profits of such ships or aircraft are taxable according to the provisions of article 8.
4 - Gains from the alienation of any property other than that referred to in paragraphs 1, 2 and 3, 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. However, such income may be taxed in the other Contracting State if:
He has a fixed base regularly available to him in the other State for the purpose of performing his activities; or
His stay in the other State is for a period or periods exceeding in the aggregate 183 days in any 12 month period commencing or ending in the fiscal year concerned;
but only so much thereof as is attributable to that fixed base or to services performed in that 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 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 12 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, which the employer has in the other 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, may be taxed in the Contracting State in which the profits from the operation of the ship or aircraft are taxable according to the provisions of article 8.
Article 16
Director's fees
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 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 any remuneration paid by that company to a member of each organs in respect of the exercise of a continuous 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 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 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.
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) Salaries, wages and other similar 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 or subdivision or authority shall be taxable only in that 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 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 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, 17 and 18 shall apply to salaries, wages and other similar 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.
Article 20
Professors and students
1 - Subject to provisions of article 19, a professor or teacher who is or was immediately before a resident of a Contracting State and who visits the other State for a period not exceeding two years solely for the purpose of teaching, carrying out research or giving lectures undertaken in the public interest at a university or educational institution shall be exempt from tax in that other State on his remuneration from such activity, provided that such remuneration is derived from sources outside that other State.
2 - Payments which a student or business apprentice who is or was immediately before a resident of a Contracting State and who is present in the other Contracting State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State, or are derived as a remuneration from a part-time activity exercised in that other Contracting State up to the limits deemed reasonable for the purposes of his study or training.
Article 21
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 22
1 - Subject to the provisions of the laws of Portugal regarding the allowance as a credit against Portuguese tax of tax payable in a territory outside Portugal (which shall not affect the general principle hereof):
Where a resident of Portugal derives income which, in accordance with the provisions of this Convention may be taxed in the Hellenic Republic, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in the Hellenic Republic. 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 the Hellenic Republic;
Where a company which is a resident of Portugal derives dividends from a company which is a resident of the Hellenic Republic in the capital of which the first mentioned company holds directly a participation of at least 25 per cent, Portugal shall allow as a deduction, in calculating the taxable profit subject to corporate income tax, 95 per cent of those dividends comprised in the taxable base, according to the conditions laid down by Portuguese law.
2 - Subject to the provisions of the laws of the Hellenic Republic regarding the allowance as a credit against Hellenic tax of tax payable in a territory outside the Hellenic Republic (which shall not affect the general principle hereof):
Portuguese tax payable under the laws of Portugal and in accordance with this Convention, whether directly or by deduction, on income from sources within Portugal (excluding in the case of a dividend tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any Hellenic tax computed by reference to the same income by reference to which Portuguese tax is computed;
In the case of a dividend paid by a company which is a resident of Portugal to a company which is a resident of the Hellenic Republic and which holds directly or indirectly 25 per cent or more of the capital in the company paying the dividend, the credit shall take into account [in addition to any Portuguese tax creditable under the provisions of subparagraph (a) of this paragraph] Portuguese tax payable by the company in respect of the profits out of which such dividend is paid.
3 - For the purposes of paragraph 2 income derived by a resident of the Hellenic Republic which may be taxed in Portugal in accordance with this Convention shall be deemed to be derived from sources in Portugal.
4 - Where in accordance with any provisions of this Convention income derived by a resident of a Contracting State is exempt from tax in that State, such State may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
CHAPTER V
Special provision
Article 23
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 applies to persons who are not residents of one or both of the Contracting States.
2 - Stateless persons who are residents of a Contracting State shall not be subjected in either 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 the State concerned in the same circumstances are or may be subjected.
3 - 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.
4 - Except where the provisions of paragraph 1 of article 9, of paragraphs 6 and 7 of article 11, or paragraphs 6 and 7 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.
5 - 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 subject in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirement to which other similar enterprises of the first-mentioned State are or may be subjected.
6 - The provisions of this article shall, notwithstanding the provision of article 2, apply to taxes of every kind and description.
Article 24
Mutual agreement procedure
1 - Where a person considers that the actions of one or both of this 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 23, 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 difficulties of 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, including through a joint commission consisting of themselves or their representatives, for the purpose of reaching an agreement in the sense of the preceding paragraphs.
Article 25
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 or of the domestic laws of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention. 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 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 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 States 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 process, or information, the disclosure of which would be contrary to public policy (ordre public).
Article 26
Members of diplomatic missions and consular posts
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special agreements.
CHAPTER VI
Final provisions
Article 27
Entry into force
1 - This Convention shall be ratified and the instruments of ratification shall be exchanged as soon as possible.
2 - The Convention shall enter into force upon the exchange of instruments of ratification and its provisions shall have effect:
In the Portuguese Republic:
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 the year in which the Convention enters into force;
ii) In respect of other taxes, as to income arising in any taxable period beginning on or after the first day of January in the calendar year next following the year in which the Convention enters into force.
In the Hellenic Republic:
In respect of taxes withheld at source, to income derived on or after the first day of January in the calendar year next following the year in which the Convention enters into force;
ii) In respect of other taxes, to income arising in any taxable period beginning on or after the first day of January in the calendar year next following the year in which the Convention enters into force:
Article 28
Termination
This Convention shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Convention, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year. In such event, the Convention shall cease to have effect:
In the Portuguese Republic:
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 the date on which the period specified in the said notice of termination expires;
ii) in respect of other taxes, as to income arising in the taxable period beginning on or after the first day of January in the calendar year next following the date on which the period specified in the said notice of termination expires.
In the Hellenic Republic:
In respect of taxes withheld at source, to income derived on or after the first day of January in the calendar year next following the date on which the period specified in the said notice of termination expires;
ii) in respect of other taxes, to income arising in the taxable period beginning on or after the first day of January in the calendar year next following the date on which the period specified in the said notice of termination expires.
In witness whereof the undersigned, duly authorised thereto, have signed this Convention.
Done at Lisbon, on December 2nd, in three originals, in the Portuguese, Greek and English languages, each text being equally authentic, the English text prevailing in case of doubt.
For the Government of the Portuguese Republic:
(ver assinatura no documento original)
For the Government of the Hellenic Republic:
(ver assinatura no documento original)
PROTOCOL
At the moment of signing the Convention between the Portuguese Republic and the Hellenic Republic 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 which shall be an integral part of the Convention.
Ad article 2
The Portuguese substitute inheritance tax (Imposto sobre sucessões e doações por avença) on securities is not income tax, and consequently is not covered by the scope of the Convention.
Ad article 16
According to Greece this article also comprises the remuneration of a partner in his capacity as a manager of limited liability company or partnership. This corresponds to the interpretation of this article done by Portugal concerning in particular any manager of a limited liability company or a partnership.
Ad article 23
1 - The provisions of article 23 do not preclude the application of any revision of the tax law of the Contracting States dealing with thin capitalisation problems.
2 - The provisions of article 23 shall be construed in the sense that insofar as the deductibility of the incurred disbursements is concerned, each Contracting State may apply its own procedures regarding the burden of proof.
In witness whereof, the undersigned, duly authorised thereto, have signed this Protocol.
Done in Lisbon, in triplicate at, December 2th, this day of 1999, in the Portuguese, Greek and English languages, each text being equally authentic, the English text prevailing in case of doubt.
For the Government of the Portuguese Republic:
(ver assinatura no documento original)
For the Government of the Hellenic Republic:
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