LegalizeResolução da Assembleia da República n.º 46/2012 — Aprova a Convenção entre a República Portuguesa e a República da Colômbia para Evitar a Dupla Tributação e Prevenir a…
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 a Convenção entre a República Portuguesa e a República da Colômbia para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento, assinada em Bogotá em 30 de agosto de 2010
5 - Royalties shall be deemed to arise in a Contracting State when 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 such 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.
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 derived by 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 derived by a resident of a Contracting State from the alienation of shares or of a comparable interest deriving more than 50 percent of their value directly or indirectly from immovable property situated in the other Contracting State may be taxed in that other State.
5 - Gains derived by a resident of a Contracting State from the alienation of shares or other rights representing the capital of a company that is a resident of the other Contracting State may be taxed in that other Contracting State where the resident of the first mentioned Contracting State owned, at any time within the twelve month period preceding the alienation, 25 % or more of the capital of that company, but the tax so charged shall not exceed 20 % of the net amount of such gains.
6 - Gains from the alienation of any property other than that referred to in the preceding paragraphs of this article 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 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 Contracting 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; 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, and 19, 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 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 which the employer has in the other State.
3 - Notwithstanding the preceding provisions of this article, remuneration derived by a resident of a Contracting State, in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of the other Contracting State may be taxed in that other 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 or of another similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17
Artistes and sportsmen
1 - Notwithstanding the provisions of articles 7, 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, 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. Income referred to in this paragraph includes income derived by such resident from any personal activity exercised in the other Contracting State related to his recognition as an artist or as a sportsperson.
2 - Where income in respect of personal activities exercised by an entertainer or a sportsperson in his capacity as such accrues not to the entertainer or sportsperson 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 sportsperson 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 - Salaries, wages and other similar remuneration 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
did not become a resident of that State solely for the purpose of rendering the services.
2 - Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration 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 pensions and other similar remuneration 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, pensions, and other similar remuneration 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
Students
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 his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
Article 21
Other income
Items of income of a resident of a Contracting State not dealt with in the foregoing articles of this Convention and arising in the other Contracting State may also be taxed in that other State.
CHAPTER IV
Methods for elimination of double taxation
Article 22
Elimination of double taxation
1 - In Portugal double taxation shall be eliminated as follows:
Where a resident of Portugal derives income which, in accordance with the provisions of this Convention, may be taxed in Colombia, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Colombia. 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 Colombia.
2 - In Colombia, double taxation shall be avoided as follows:
Where a resident of Colombia derives income which, in accordance with the provisions of this Convention, may be taxed in the other Contracting State, Colombia shall allow, subject to the limitations of provided for by its domestic law, a deduction from the income tax effectively paid by such resident in an amount equal to the income tax paid in Portugal.
Such deduction shall not, however, exceed that part of the tax on the income as computed before the deduction is given, which is attributable to such items of income which may be taxed in that other Contracting State.
In the case of dividends, Colombia shall allow a deduction from the income tax equal to the product of multiplying the total amount of the dividends by the income tax rate applicable to the profits from which such dividends are paid. When such dividends are taxed in the other Contracting State, this deduction will increase by the amount of such tax. However, this deduction shall not exceed the total amount of income tax payable in Colombia with respect to such dividends.
3 - 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 provisions
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 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 6 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 24
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 23, 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 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. 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 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.
5 - The implementation of a mutual agreement should be made subject to the acceptance of such mutual agreement by the taxpayer, and to the taxpayer's withdrawal of his suit at law concerning the points settled in the mutual agreement.
Article 25
Exchange of information
1 - The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political or administrative subdivisions or local authorities, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by articles 1 and 2.
2 - Any information received under paragraph 1 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, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. 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.
3 - In no case shall the provisions of paragraphs 1 and 2 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).
4 - If information is requested by a Contracting State in accordance with this article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5 - In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
Article 26
Entitlement to the benefits of the Convention
1 - It is understood that the provisions of this Convention shall not be interpreted so as to prevent the application by a Contracting State of the anti-avoidance provisions provided for in its domestic law.
2 - It is understood that the benefits foreseen in this Convention shall not be granted to a resident of a Contracting State which is not the beneficial owner of the income derived from the other Contracting State.
3 - The provisions of this Convention shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the property or right in respect of which the income is paid to take advantage of those provisions by means of such creation or assignment.
Article 27
Assistance in the collection of taxes
1 - The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by articles 1 and 2. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this article.
2 - The term «revenue claim» as used in this article means an amount owed in respect of taxes of every kind and description imposed on behalf of the Contracting States, or of their political or administrative subdivisions or local authorities, insofar as the taxation thereunder is not contrary to this Convention or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3 - When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4 - When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
5 - Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State have any priority applicable to that revenue claim under the laws of the other Contracting State.
6 - Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7 - Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be
in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection; or
in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collection the competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
8 - In no case shall the provisions of this article 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 carry out measures which would be contrary to public policy (ordre public);
to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;
to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State.
Article 28
Members of diplomatic missions and consular posts
Nothing in this Convention 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.
CHAPTER VI
Final provisions
Article 29
Entry into force
1 - This Convention shall enter into force thirty days after the date of receipt of the latter of the notifications, in writing and through diplomatic channels, conveying the completion of the internal procedures of each Contracting State required for that purpose.
2 - The provisions of this Convention shall have effect, in Colombia and in Portugal:
with respect to taxes withheld at source, the fact giving rise to them appearing on or after the first day of January of the calendar year next following that in which this Convention enters into force;
with respect to other taxes, as to income arising in any fiscal year beginning on or after the first day of January of the calendar year next following that in which this Convention enters into force.
Article 30
Duration and termination
1 - Following the expiration of an initial period of five years, this Convention shall remain in force for an indeterminate period of time.
2 - Following the expiration of the initial period of five years, either Contracting State may denounce this Convention upon notification, in writing through diplomatic channels, before the first day of July of the current calendar year.
3 - In case of denunciation, this Convention shall cease to have effect, in Colombia and in Portugal:
with respect to taxes withheld at source, the fact giving rise to them appearing on or after the first day of January of the calendar year next following that specified in the notice of termination;
with respect to other taxes, as to income arising in the fiscal year beginning on or after the first day of January of the calendar year next following that specified in the notice of termination.
In witness whereof the undersigned, duly authorized thereto, have signed this Convention.
Done in duplicate at Bogota, on the 30th of August of 2010, in the Portuguese, Spanish and English languages, all texts being equally authentic. In case of any divergence of interpretation of the text of this Convention, the English text shall prevail.
For the Portuguese Republic:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07400/0187101900.pdf))
For the Republic of Colombia:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07400/0187101900.pdf))
PROTOCOL TO THE CONVENTION BETWEEN THE PORTUGUESE REPUBLIC AND THE REPUBLIC OF COLOMBIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME.
On signing the Convention between the Portuguese Republic and the Republic of Colombia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (hereinafter referred to as «the Convention»), the signatories have agreed that the following provisions shall form an integral part of the Convention:
In relation to paragraph 3 of article 5.
For purposes of calculating the time limits set forth in paragraph 3 of article 5 of the Convention, the activities carried on by an enterprise associated with another enterprise in terms of article 9 of the Convention, shall be added to the time period of the activities carried out by the enterprise of which it is an associate, if the activities of both enterprises are identical or substantially similar and are carried out in connection with the same site or project.
In relation to paragraph 3 of article 7.
In applying paragraph 3 of article 7 of the Convention, deductibility of expenses shall be determined in accordance with the domestic legislation of the Contracting State in which the permanent establishment is located, provided that the requirements, conditions, and limitations to which they are subjected, are complied with.
In relation to paragraph 3 of article 8.
It is agreed that whenever companies from different countries have agreed to carry on an air transportation business together in the form of a consortium or a similar form of association, the provisions of paragraph 1 of article 8 of the Convention shall apply to such part of the profits of the consortium or association as corresponds to the participation held in that consortium or association by a company that is a resident of a Contracting State.
In relation to article 10.
In the case of Colombia, subject to the provisions of paragraph 2 of article 10 of the Convention, when a company which is a resident of Colombia has not paid income tax on profits distributed to shareholders (socios o accionistas) because of exemptions or because the profit exceeds the non taxed limit contained in article 49 and in paragraph 1 of the article 245 of the Tax Statute, the dividend distributed may be taxed in Colombia at a rate of 33 %, if the beneficial owner of the dividend is a shareholder (socio o accionista) resident of Portugal.
In relation to article 12.
If, after the signing of the Convention, Colombia concludes with a third state a Convention which includes provisions regarding technical assistance, technical services or consulting services that are more favorable than those provided for in article 12 of the Convention, such provisions shall apply automatically to the Convention, under the same conditions as if they had been included in the Convention. Such provisions shall apply to the Convention from the date of entry into force of the Convention with the third State. The competent authority of Colombia shall inform the competent authority of Portugal without delay that the conditions of application of this paragraph have been fulfilled.
In relation to paragraph 3 of article 12 it is agreed that the term «royalties» also includes gains derived from the alienation of the rights or property mentioned in paragraph 3 of article 12 of the Convention to the extent that such gains are contingent on the productivity, use, or disposition thereof.
In witness whereof the undersigned, duly authorized thereto, have signed this Protocol.
Done in duplicate at Bogota, on the 30th of August of 2010, in the Portuguese, Spanish and English languages, all texts being equally authentic. In case of any divergence of interpretation of the text of this Convention, the English text shall prevail.
For the Portuguese Republic:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07400/0187101900.pdf))
For the Republic of Colombia:
([ver documento original](https://files.diariodarepublica.pt/1s/2012/04/07400/0187101900.pdf))
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