Resolução da Assembleia da República n.º 27/2006 — Aprova o Acordo entre a República Portuguesa e o Território Dependente da Coroa Britânica das Ilhas Turcas e Caicos…

2 - Any entity established in a Contracting Party to which interest is paid or for which interest is secured for the benefit of the beneficial owner shall also be considered a paying agent upon such payment or securing of such payment. This provision shall not apply if the economic operator has reason to believe, on the basis of official evidence produced by that entity that:

An economic operator paying interest to, or securing interest for, such an entity established in the other Contracting Party which is considered a paying agent under this paragraph shall communicate the name and address of the entity and the total amount of interest paid to, or secured for, the entity to the competent authority of its Contracting Party of establishment, which shall pass this information on to the competent authority of the Contracting Party where the entity is established.

3 - The entity referred to in paragraph 2 of this article shall, however, have the option of being treated for the purposes of this Agreement as an UCITS or equivalent undertaking as referred to in sub-paragraph c) of paragraph 2. The exercise of this option shall require a certificate to be issued by the Contracting Party in which the entity is established and presented to the economic operator by that entity. A Contracting Party shall lay down the detailed rules for this option for entities established in their territory.

4 - Where the economic operator and the entity referred to in paragraph 2 of this article are established in the same Contracting Party, that Contracting Party shall take the necessary measures to ensure that the entity complies with the provisions of this Agreement when it acts as a paying agent.

5 - The legal persons exempted from sub-paragraph a) of paragraph 2 of this article are:

Article 8

Definition of interest payment

1 - For the purposes of this Agreement «interest payment» shall mean:

ii) An equivalent undertaking for collective investment established in the Turks and Caicos Islands;

iii) Entities which qualify for the option under article 7, 3, of this Agreement; or

iv) Undertakings for collective investment established outside the territory to which the Treaty establishing the European Community applies by virtue of article 299 thereof and outside the Turks and Caicos Islands;

ii) An equivalent undertaking for collective investment established in the Turks and Caicos Islands;

iii) Entities which qualify for the option under article 7, 3, of this Agreement; or

iv) Undertakings for collective investment established outside the territory to which the Treaty establishing the European Community applies by virtue of article 299 thereof and outside the Turks and Caicos Islands.

However, the Contracting Parties shall have the option of including income mentioned under paragraph 1, d), of this article in the definition of interest only to the extent that such income corresponds to gains directly or indirectly deriving from interest payments within the meaning of paragraphs 1, a) and b), of this article.

2 - As regards paragraphs 1, c) and d), of this article, when a paying agent has no information concerning the proportion of the income which derives from interest payments, the total amount of the income shall be considered an interest payment.

3 - As regards paragraph 1, d), of this article, when a paying agent has no information concerning the percentage of the assets invested in debt claims or in shares or units as defined in that paragraph, that percentage shall be considered to be above 40%. Where he cannot determine the amount of income realised by the beneficial owner, the income shall be deemed to correspond to the proceeds of the sale, refund or redemption of the shares or units.

4 - When interest, as defined in paragraph 1 of this article, is paid to or credited to an account held by an entity referred to in article 7, 2, of this Agreement, such entity not having qualified for the option under article 7, 3, of this Agreement, such interest shall be considered an interest payment by such entity.

5 - As regards paragraphs 1, b) and d), of this article, a Contracting Party shall have the option of requiring paying agents in its territory to annualise the interest over a period of time which may not exceed one year, and treating such annualised interest as an interest payment even if no sale, redemption or refund occurs during that period.

6 - By way of derogation from paragraphs 1, c) and d), of this article, a Contracting Party shall have the option of excluding from the definition of interest payment any income referred to in those provisions from undertakings or entities established within its territory where the investment in debt claims referred to in paragraph 1, a), of this article of such entities has not exceeded 15% of their assets. Likewise, by way of derogation from paragraph 4 of this article, a Contracting Party shall have the option of excluding from the definition of interest payment in paragraph 1 of this article interest paid or credited to an account of an entity referred to in article 7, 2, of this Agreement which has not qualified for the option under article 7, 3, of this Agreement and is established within its territory, where the investment of such an entity in debt claims referred to in paragraph 1, a), of this article has not exceeded 15% of its assets.

The exercise of such option by one Contracting Party shall be binding on the other Contracting Party.

7 - The percentage referred to in paragraph 1, d), of this article and paragraph 3 of this article shall, from the 1st January 2011, be 25%.

8 - The percentages referred to in paragraph 1, d), of this article and in paragraph 6 of this article shall be determined by reference to the investment policy as laid down in the fund rules or instruments of incorporation of the undertakings or entities concerned or, failing which, by reference to the actual composition of the assets of the undertakings or entities concerned.

Article 9

Retention tax revenue sharing

1 - The Turks and Caicos Islands shall retain 25% of the retention tax deducted under this Agreement and transfer the remaining 75% of the revenue to Portugal.

2 - The Turks and Caicos Islands levying retention tax in accordance with article 4, 4, of this Agreement shall retain 25% of the revenue and transfer 75% to Portugal proportionate to the transfers carried out pursuant to paragraph 1 of this article.

3 - Such transfers shall take place for each year in one instalment at the latest within a period of six months following the end of the tax year established by the laws of the Turks and Caicos Islands.

4 - The Turks and Caicos Islands levying retention tax shall take the necessary measures to ensure the proper functioning of the revenue sharing system.

Article 10

Elimination of double taxation

1 - A Contracting Party in which the beneficial owner is resident for tax purposes shall ensure the elimination of any double taxation which might result from the imposition by the Turks and Caicos Islands of the retention tax to which this Agreement refers in accordance with the following provisions:

ii) If, in addition to the retention tax referred to in article 4 of this Agreement, interest received by a beneficial owner has been subject to any other type of withholding/retention tax and the Contracting Party of residence for tax purposes grants a tax credit for such withholding/retention tax in accordance with its national law or double taxation conventions, such other withholding/retention tax shall be credited before the procedure in sub-paragraph i) of this article is applied.

2 - The Contracting Party which is the country of residence for tax purposes of the beneficial owner may replace the tax credit mechanism referred to in paragraph 1 of this article by a refund of the retention tax referred to in article 1 of this Agreement.

Article 11

Transitional provisions for negotiable debt securities

1 - During the transitional period referred to in article 14 of this Agreement, but until 31 December 2010 at the latest, domestic and international bonds and other negotiable debt securities which have been first issued before the 1st March 2001 or for which the original issuing prospectuses have been approved before that date by the competent authorities within the meaning of Council Directive no. 80/390/EC or by the responsible authorities in third countries shall not be considered as debt claims within the meaning of article 8, 1, a), of this Agreement, provided that no further issues of such negotiable debt securities are made on or after the 1st March 2002. However, should the transitional period continue beyond the 31st December 2010, the provisions of this article shall only continue to apply in respect of such negotiable debt securities:

If a further issue is made on or after the 1st March 2002 of an aforementioned negotiable debt security issued by a Government or a related entity acting as a public authority or whose role is recognised by an international treaty, as defined in the annex to this Agreement, the entire issue of such security, consisting of the original issue and any further issue, shall be considered a debt claim within the meaning of article 8, 1, a), of this Agreement.

If a further issue is made on or after the 1st March 2002 of an aforementioned negotiable debt security issued by any other issuer not covered by the second sub-paragraph, such further issue shall be considered a debt claim within the meaning of article 8, 1, a), of this Agreement.

2 - Nothing in this article shall prevent the Contracting Parties from taxing the income from the negotiable debt securities referred to in paragraph 1 in accordance with their national laws.

Article 12

Mutual agreement procedure

Where difficulties or doubts arise between the parties regarding the implementation or interpretation of this Agreement, the Contracting Parties shall use their best endeavours to resolve the matter by mutual agreement.

Article 13

Confidentiality

1 - All information provided and received by the competent authority of a Contracting Party shall be kept confidential. The principle of confidentiality is essential to the proper implementation and permanence of this Agreement.

2 - Information provided to the competent authority of a Contracting Party may not be used for any purpose other than for the purposes of direct taxation without the prior written consent of the other Contracting Party.

3 - Information provided shall be disclosed only to persons or authorities concerned with the purposes of direct taxation, and used by such persons or authorities only for such purposes or for oversight purposes, including the determination of any appeal. For these purposes, information may be disclosed in public court proceedings or in judicial proceedings.

4 - Where a competent authority of a Contracting Party considers that information which it has received from the competent authority of the other Contracting Party is likely to be useful to the competent authority of another member State, it may transmit it to the latter competent authority with the agreement of the competent authority which supplied the information.

Article 14

Transitional period

At the end of the transitional period as defined in article 10, 2, of the directive, the Turks and Caicos Islands shall cease to apply the retention tax and revenue sharing provided for in this Agreement and shall apply in respect of Portugal the automatic exchange of information provisions in the same manner as is provided for in chapter II of the directive. If during the transitional period the Turks and Caicos Islands elects to apply the automatic exchange of information provisions in the same manner as is provided for in chapter II of the directive, it shall no longer apply the withholding/retention tax and the revenue sharing provided for in article 9 of this Agreement.

Article 15

Entry into force

1 - This Agreement shall enter into force on the thirtieth day after the latter of the dates on which the respective Governments have notified each other in writing that the formalities constitutionally required have been complied with, and its provisions shall have effect from the date from which the directive is applicable according to paragraphs 2 and 3 of article 17 of the directive.

2 - Article 2 of this Agreement shall not have effect in Portugal in the absence of direct taxation in the Turks and Caicos Islands.

Article 16

Termination

1 - This Agreement shall remain in force until terminated by either Contracting Party.

2 - Either Contracting Party may terminate this Agreement by giving notice of termination in writing to the other Contracting Party, such notice to specify the circumstances leading to the giving of such notice. In such a case, this Agreement shall cease to have effect 12 months after the serving of notice.

Article 17

Application and suspension of application

1 - The application of this Agreement shall be conditional on the adoption and implementation by all the member States of the European Union, by the United States of America, Switzerland, Andorra, Liechtenstein, Monaco and San Marino, and by all the relevant dependent and associated territories of the member States of the European Community, respectively, of measures which conform with or are equivalent to those contained in the directive or in this Agreement, and providing for the same dates of implementation.

2 - Subject to the mutual agreement procedure provided for in article 12 of this Agreement, the application of this Agreement or parts thereof may be suspended by either Contracting Party with immediate effect through notification to the other specifying the circumstances leading to such notification should the directive cease to be applicable either temporarily or permanently in accordance with European Community law or in the event that a member State should suspend the application of its implementing legislation. Application of the Agreement shall resume as soon as the circumstances leading to the suspension no longer apply.

3 - Subject to the mutual agreement procedure provided for in article 12 of this Agreement, either Contracting Party may suspend the application of this Agreement through notification to the other specifying the circumstances leading to such notification in the event that one of the third countries or territories referred to in paragraph 1 should subsequently cease to apply the measures referred to in that paragraph. Suspension of application shall take place no earlier than two months after notification. Application of the Agreement shall resume as soon as the measures are reinstated by the third country or territory in question.

Done in the Portuguese and English languages all texts being equally authentic.

ANNEX

List of related entities

For the purposes of article 11 of this Agreement, the following entities will be considered to be a «related entity acting as a public authority or whose role is recognised by an international treaty»:

Entities within the European Union:

Belgium:

Vlaams Gewest (Flemish Region);

Région wallonne (Walloon Region);

Région bruxelloise/Brussels Gewest (Brussels Region);

Communauté française (French Community);

Vlaamse Gemeenschap (Flemish Community);

Deutschsprachige Gemeinschaft (German-speaking Community);

Spain:

Xunta de Galicia (Regional Executive of Galicia);

Junta de Andalucía (Regional Executive of Andalusia);

Junta de Extremadura (Regional Executive of Extremadura);

Junta de Castilla-La Mancha (Regional Executive of Castilla-La Mancha);

Junta de Castilla-León (Regional Executive of Castilla-León);

Gobierno Foral de Navarra (Regional Government of Navarre);

Govern de les Illes Balears (Government of the Balearic Islands);

Generalitat de Catalunya (Autonomous Government of Catalonia);

Generalitat de Valencia (Autonomous Government of Valencia);

Diputación General de Aragón (Regional Council of Aragon);

Gobierno de las Islas Canarias (Government of the Canary Islands);

Gobierno de Murcia (Government of Murcia);

Gobierno de Madrid (Government of Madrid);

Gobierno de la Comunidad Autónoma del País Vasco/Euzkadi (Government of the Autonomous Community of the Basque Country);

Diputación Foral de Guipúzcoa (Regional Council of Guipúzcoa);

Diputación Foral de Vizcaya/Bizkaia (Regional Council of Vizcaya);

Diputación Foral de Alava (Regional Council of Alava);

Ayuntamiento de Madrid (City Council of Madrid);

Ayuntamiento de Barcelona (City Council of Barcelona);

Cabildo Insular de Gran Canaria (Island Council of Gran Canaria);

Cabildo Insular de Tenerife (Island Council of Tenerife);

Instituto de Crédito Oficial (Public Credit Institution);

Instituto Catalán de Finanzas (Finance Institution of Catalonia);

Instituto Valenciano de Finanzas (Finance Institution of Valencia);

Greece:

(ver texto em língua estrangeira no documento original) (National Telecommunications Organisation);

(ver texto em língua estrangeira no documento original) (National Railways Organisation);

(ver texto em língua estrangeira no documento original) (Public Electricity Company);

France:

La Caisse d'amortissement de la dette sociale (CADES) (Social Debt Redemption Fund);

L'Agence française de développement (AFD) (French Development Agency);

Réseau Ferré de France (RFF) (French Rail Network);

Caisse Nationale des Autoroutes (CNA) (National Motorways Fund);

Assistance publique Hôpitaux de Paris (APHP) (Paris Hospitals Public Assistance);

Charbonnages de France (CDF) (French Coal Board);

Entreprise minière et chimique (EMC) (Mining and Chemicals Company);

Italy:

Regions;

Provinces;

Municipalities;

Cassa Depositi e Prestiti (Deposits and Loans Fund);

Latvia:

(ver texto em língua estrangeira no documento original) (Local governments);

Poland:

Gminy (communes);

Powiaty (districts);

Województwa (provinces);

(ver texto em língua estrangeira no documento original) (associations of communes);

Powiatów (associations of districts);

Województw (association of provinces);

(ver texto em língua estrangeira no documento original) (capital city of Warsaw);

Agencja Restrukturyzacji i Modernizacji Rolnictwa (Agency for Restructuring and Modernisation of Agriculture);

(ver texto em língua estrangeira no documento original) (Agricultural Property Agency);

Portugal:

Região Autónoma da Madeira (Autonomous Region of Madeira);

Região Autónoma dos Açores (Autonomous Region of Azores);

Municipalities;

Slovakia:

Mestá a obce (municipalities);

(ver texto em língua estrangeira no documento original) (Slovak Railway Company);

(ver texto em língua estrangeira no documento original) (State Road Management Fund);

Slovenské elektrárne (Slovak Power Plants);

(ver texto em língua estrangeira no documento original) (Water Economy Building Company);

International entities:

European Bank for Reconstruction and Development;

European Investment Bank;

Asian Development Bank;

African Development Bank;

World Bank/IBRD/IMF;

International Finance Corporation;

Inter-American Development Bank;

Council of Europe Social Development Fund;

EURATOM;

European Community;

Corporación Andina de Fomento (CAF) (Andean Development Corporation);

Eurofima;

European Coal & Steel Community;

Nordic Investment Bank;

Caribbean Development Bank;

The provisions of article 11 are without prejudice to any international obligations that the Contracting Parties may have entered into with respect to the above mentioned international entities.

Entities in third countries. - The entities that meet the following criteria:

1) The entity is clearly considered to be a public entity according to the national criteria;

2) Such public entity is a non-market producer which administers and finances a group of activities, principally providing non-market goods and services, intended for the benefit of the community and which are effectively controlled by general government;

3) Such public entity is a large and regular issuer of debt;

4) The State concerned is able to guarantee that such public entity will not exercise early redemption in the event of gross-up clauses.