LegalizeResolução da Assembleia da República n.º 48/2012 — Aprova a Convenção entre a República Portuguesa e a República do Panamá 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 do Panamá para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento, assinada na Cidade do Panamá a 27 de agosto de 2010
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.
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 software, cinematograph films, or films or tapes and other means of image or sound reproduction, any patent, trade mark, drawings, designs or models, plans, secret formulas or processes, 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 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 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 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 of the royalties 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 of the royalties 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 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 comparable interests representing the capital of a company that is a resident of the other Contracting State may be taxed in that other Contracting State if such shares or comparable interests represent 25 % or more of the capital of that company, but the tax so charged shall not exceed either 5 % of their alienation value or 10 % of the net amount of such gains.
5 - Gains derived by a resident of a Contracting State from the alienation of shares or comparable interests deriving more than 50 % of their value directly or indirectly from immovable property situated in the other Contracting State may be taxed in that other State.
6 - Gains from the alienation of any property other than that referred to in the preceding paragraphs shall be taxable only in the Contracting State of which the alienator is a resident.
Article 14
Services
1 - Income derived by a resident of a Contracting State for services rendered in the other Contracting State may be taxed in the first-mentioned State. However, such income may also be taxed in the Contracting State where the services were rendered, to the extent that such services qualify as professional services, consulting services, industrial or commercial advice, technical or management services or similar services, but if the beneficial owner of such income is a resident of the other Contracting State, the tax so charged may not exceed 10 % of the gross amount of such income.
2 - The term «professional services» as used in this article include independent scientific, literary, artistic and educational activities, as well as medical, legal, engineering, architectural, dental and accounting activities.
3 - The provisions of paragraph 1 shall not apply if the service provider, being a resident of a Contracting State:
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
such person either directly, in the case of individuals, or through employees or other personnel, in the case of companies, stay in the other Contracting State for a period or periods amounting to or exceeding in the aggregate nine months 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 the activities performed in that other State may be taxed in that other State.
4 - The income from services mentioned in paragraph 1 shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the income from such services, 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 income from such services was incurred, and such income is borne by such permanent establishment or fixed base, then such income shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated.
5 - Where, by reason of a special relationship between the service provider and the beneficiary of the services or between both of them and some other person, the amount of the services income exceeds the amount which would have been agreed upon by the service provider and the beneficiary of the services 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 services income shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
Article 15
Income from employment
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 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
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, executive committee 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 sportspersons
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 sportsperson, 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 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
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 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.
3 - Notwithstanding the provisions of paragraphs 1 and 2, 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 Panama, double taxation shall be eliminated as follows:
Where a resident of Panama derives income which, in accordance with the provisions of this Convention, may be taxed in Portugal, Panama will exempt such income from taxes.
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 Convention, may be taxed in Panama, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Panama. 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 Panama.
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 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 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. They may also consult together for the elimination of double taxation in cases not provided for in 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 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
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.
Article 27
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.
CHAPTER VI
Final provisions
Article 28
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 through diplomatic channels, conveying the completion of the domestic procedures of each Contracting State required for that purpose.
2 - The provisions of this Convention shall have effect:
in respect of 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;
in respect of 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;
in respect of the exchange of information, the requests may be performed upon the date of entry into force for criminal tax matters; and also upon that date for all other matters but only in respect of taxable periods beginning on or after that date or, where there is no taxable period, all charges to tax arising on or after that date.
Article 29
Duration and termination
1 - Following the expiration of an initial period of five years, this Convention shall remain in force for an unlimited 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 the event of denunciation, this Convention shall cease to have effect:
in respect of 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;
in respect of 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 at Panama City, on the 27th of August of 2010, in duplicate, in the portuguese, spanish and english languages, the three texts being equally authentic. In case there is any divergence of interpretation between any of the texts of this Convention, the English text shall prevail.
For the Portuguese Republic:
Sérgio Tavares Vasques, Secretary of State of the Fiscal Affairs.
For the Republic of Panama:
Juan Carlos Varela, Minister of External Relations.
PROTOCOL TO THE CONVENTION BETWEEN THE PORTUGUESE REPUBLIC AND THE REPUBLIC OF PANAMA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME.
On signing the Convention between the Republic of Panama and the Portuguese Republic 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:
Mode of application of the Convention.
The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of the Convention.
In relation with article 5, paragraph 3.
For the purposes of determining the duration of activities under paragraph 3, the period during which activities are carried on in a Contracting State by an enterprise associated with another enterprise shall be added to the period during which the activities are carried out by the enterprise with which it is associated, provided that the activities of the two enterprises are identical or substantially similar and are carried out in connection with the same or a connected site or project. For the purposes of this paragraph, an enterprise shall be deemed to be associated with another enterprise if one is controlled directly or indirectly by the other, or if both are controlled directly or indirectly by a third person or persons.
In relation with articles 6, 10, 11, 12 and 14.
Whereby the ownership of shares, participations or other rights in a company or any other legal person attributes directly or indirectly to a resident of a Contracting State a right to the use of immovable property situated in the other Contracting State that such company or other legal person possesses therein, the income derived by the owner of the shares, participations or rights, as a result of the direct use, letting, or use in any other form of such property, may be taxed in the Contracting State in which the immovable property is situated, to the same extent to which the owner of such rights would be taxed if he were a resident of that other State. This provision shall only apply to the extent to which the owner of the shares, participations or other rights holds at least 10 percent of the capital or voting power of such company or other legal person.
In relation with article 6.
The provisions of article 6 of the Convention shall also apply to income from movable property, or income derived from services connected with the use or the right to use the immovable property, either of which, under the taxation law of the Contracting State in which the property is situated, is assimilated to income from immovable property.
In relation with article 10, paragraph 3.
In the case of Portugal, the term «dividends» shall also include profits attributed under an arrangement for participation in profits («associação em participação»).
In relation with article 12, paragraph 3.
Payments in relation to software shall fall within the definition of «royalties» where less than the full rights to the software are transferred either if the payments are in consideration for the right to use a copyright on software for commercial exploitation (except payments for the right to distribute standardised software copies, not comprising the right either to customize nor to reproduce them) or if they relate to software acquired for the business use of the purchaser, when, in this last case, the software is not absolutely standardised but somehow adapted to the purchaser.
In relation with article 14.
It is understood that the term «services rendered in the other Contracting State» shall be interpreted in the sense that the services are performed by an individual who is present in that other Contracting State, or by a company, through employees or other personnel engaged for such purpose who are present in that other State.
It is also understood that after a period of five years following the entering into force of the Convention, the competent authorities of the Contracting States may evaluate the effectiveness of article 14 of the Convention, with the view of amending it, if necessary.
In relation with article 25.
It is understood that information will only be requested once the requesting Contracting State has exhausted all regular sources of information available under the internal taxation procedure.
It is understood that the administrative assistance provided for in article 25 does not include: (i) measures aimed only at the simple collection of pieces of evidence, or (ii) when it is improbable that the requested information will be relevant for controlling or administering tax matters of a given taxpayer in a Contracting State.
It is understood that the tax authorities of the requesting State shall provide the following information to the tax authorities of the requested State when making a request for information under article 25 of the Convention:
(i) the name and address of the person(s) under examination or investigation and, if available, other particulars facilitating that person's identification, such as date of birth, marital status, tax identification number;
(ii) the period of time for which the information is requested;
(iii) a statement of the information sought including its nature and the form in which the requesting State wishes to receive the information from the requested State;
(iv) the tax purpose for which the information is sought;
(v) the name and address of any person believed to be in possession of the requested information.
It is further understood that article 25 of the Convention shall not commit the Contracting States to exchange information on an automatic or a spontaneous basis.
It is understood that in case of an exchange of information, the administrative procedural rules regarding taxpayers' rights provided for in the requested Contracting State remain applicable before the information is transmitted to the requesting Contracting State.
These procedures include notifying the person in regards with the request of information from the other Contracting State, and granting the possibility for that person to file and present a stance with the tax administration before it issues a response to the requesting State. It is further understood that this provision aims at guaranteeing the taxpayer a fair procedure and not at preventing or unduly delaying the exchange of information process.
The Contracting States shall comply with the guidelines for the regulation of computer files containing personal data as established by the United Nations General Assembly Resolution A/RES/45/95, adopted on the 14th December 1990.
In witness whereof the undersigned, duly authorized thereto, have signed this Protocol.
Done at Panama City, on the 27th of August of 2010, in duplicate, in the portuguese, spanish and english languages, the three texts being equally authentic. In case there is any divergence of interpretation between any of the texts of this Protocol, the English text shall prevail.
For the Portuguese Republic:
Sérgio Tavares Vasques, Secretary of State of the Fiscal Affairs.
For the Republic of Panama:
Juan Carlos Varela, Minister of External Relations.
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