LegalizeResolução da Assembleia da República n.º 88/2013 — Aprova a Convenção entre a República Portuguesa e a República do Peru 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 Peru para Evitar a Dupla Tributação e Prevenir a Evasão Fiscal em Matéria de Impostos sobre o Rendimento, assinada em Lisboa, a 19 de novembro de 2012
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 payments received as consideration for the furnishing of technical assistance in connection with the use of, or the right to use, any copyright, goods or information to which paragraph 3 of this article applies;
15 per cent of the gross amount of the royalties in all other cases.
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, scientific or other work, including computer software, cinematograph films and other means of video or audio reproduction, any patent, trade mark, design or model, plan, secret formula or process or other property intangible, or for information concerning industrial, commercial or scientific experience. The term «royalties» also comprises payments received as a consideration for the furnishing of technical assistance in connection with the use of, or the right to use, any copyright, goods or information to which this paragraph applies.
4 - The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of article 7 or article 14, as the case may be, shall apply.
5 - Royalties shall be deemed to arise in a Contracting State when the payer is 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 exceeds, for whatever reason, 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 State.
4 - Gains derived by a resident of a Contracting State from the direct or indirect alienation of shares, comparable interests, securities or other rights representing the capital of a company which is a resident of the other Contracting State may be taxed in that other Contracting State where the resident of the first mentioned State, at any time within the twelve month period preceding such alienation, alone or together with any person who is related to that resident, had a participation of at least 20 per cent in the capital of that company.
5 - Notwithstanding the provisions of paragraph 4, gains derived by a resident of a Contracting State from the alienation of shares or comparable interest or other securities 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.
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 an individual who is 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 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 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
Entertainers 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 entertainer, 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 derived by an entertainer or a sportsman who is a resident of a Contracting State from his personal activities relating to his reputation as an entertainer or sportsman 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, annuities and similar remuneration
Subject to the provisions of paragraph 2 of article 19, pensions, annuities and other similar remuneration paid to a resident of a Contracting State 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 beneficial owner 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.
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 the case of 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 Peru, Portugal shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Peru. 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 Peru;
Notwithstanding the provision of subparagraph a) of paragraph 1 of this article, where a company which is a resident of Portugal receives dividends from a company which is a resident of Peru and which is subject to and not exempt from Peruvian tax, Portugal shall allow a deduction for such dividends included in the tax base of the company receiving the dividends, provided that the latter company holds directly a participation corresponding to at least 25 per cent of the capital of the company paying the dividends for an uninterrupted period of two years prior to the date on which the dividends are paid or, if held for a shorter period, if it continues to hold that participation until the two-year-long condition is satisfied. The provisions of this subparagraph shall only apply if the profits out of which such dividends are paid:
have been effectively taxed at a rate of 10 per cent or higher; and
ii) do not result from activities which generate passive income, namely royalties, capital gains and other income derived from securities, income from immovable property not situated in the Contracting State of which the company paying the dividends is a resident, income from insurance activities mainly derived from insurance of property not situated in that Contracting State or of persons who are not residents of that Contracting State, and income from banking operations not mainly directed at the market of that Contracting State.
2 - In the case of Peru, double taxation shall be eliminated as follows:
Residents of Peru may credit against peruvian tax, as a credit, the Portuguese tax payable on income taxed in accordance with the laws of Portugal and the provisions of this Convention. Such credit shall not, in any case, exceed that part of the Peruvian tax which is attributable to the income which may be taxed in Portugal;
Where a company which is a resident of Portugal pays dividends to a company which is a resident of Peru that controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividends, the credit mentioned in subparagraph a) of paragraph 2 of this article shall take into account the tax payable in Portugal by such company in respect of the profits out of which such dividends are paid but only to the extent that the peruvian tax exceeds the amount of the credit determined without reference to this subparagraph.
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 apply to taxes covered by this Convention.
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.
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.
CHAPTER VI
Final provisions
Article 27
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 the case of Portugal:
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; and
ii) 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 the case of Peru, in respect of Peruvian taxes and amounts paid, credited to an account, or accounted as an expense, on or after the first day of January of the calendar year immediately following that in which the Convention enters force.
Article 28
Duration and termination
This Convention shall remain in force until terminated by a Contracting State. Following the expiration of an initial period of five years, either Contracting State may terminate the Convention, through diplomatic channels, by giving written notice of termination at least six months before the end of any calendar year. In such case, the Convention shall cease to have effect:
in the case of Portugal:
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; and
ii) 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 the case of Peru, in respect of peruvian taxes 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 Lisbon this 19 day of November 2012, in the spanish, portuguese and english languages, all texts being equally authentic. In case of any divergence of interpretation of the text of this Protocol, the english text shall prevail.
For the Portuguese Republic:
Paulo de Faria Lince Núncio, State Secretary for Tax Affairs.
For the Republic of Peru:
Rafael Roncagliolo Orbegoso, Minister for Foreign Affairs.
PROTOCOL TO THE CONVENTION BETWEEN THE PORTUGUESE REPUBLIC AND THE REPUBLIC OF PERU 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 Peru 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:
1 - Mode of application of the Convention:
The Contracting States may settle the mode of application of the Convention.
2 - With reference to article 3, paragraph 1, subparagraph d):
In the case of Peru, the term «person» shall include estates in the course of administration («sucesiones indivisas») as well as matrimonial partnerships («sociedades conyugales»), both of which shall be treated as an individual for the purposes of the Convention.
3 - With reference to article 5, paragraph 3:
For the purposes of computing the time period or periods mentioned in paragraph 3 of article 5 of the Convention, it is agreed that the duration of the activities carried on by an enterprise shall include the activities carried on by associated enterprises, within the meaning of article 9 of the Convention, if the activities carried on by the associated enterprises are identical or substantially similar and are carried on in connection with the same site or project.
4 - With reference to 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»).
5 - With reference to paragraph 2 of articles 11 and 12:
If Peru, under a convention concluded with another member State of the OECD or of the European Union after the entry into force of the Convention, agrees on a tax rate on interest or royalties that is lower than the one provided in this Convention, such lower rate shall, for the purposes of the Convention and under the terms provided for in the convention with such State, automatically apply with respect to paragraph 2 of articles 11 or 12 of the Convention. Such lower rates shall in no case be less than 5 per cent. For the purposes of this provision, it is understood that Peru has concluded a convention with another member State of the OECD or of the European Union when such convention has entered into force. Peru shall send Portugal through diplomatic channel without delay the notification of the entry into force of such a convention.
6 - With reference to article 12, paragraph 3:
It is agreed that payments in relation to software shall only 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 standardized 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 standardized but somehow adapted to the purchaser.
7 - With reference to article 13, paragraph 4:
It is agreed that the term «indirect alienation», for the purposes of paragraph 4 of article 13 of the Convention, means alienation by a resident of a Contracting State of shares, comparable interests, securities or other rights representing the capital of a company that owns, directly or through any other legal entity or entities, shares, comparable interests, securities or other rights representing the capital of a company which is a resident of the other Contracting State.
8 - With reference to article 18:
It is agreed that, notwithstanding the provisions of article 18 of the Convention, pensions, annuities and other similar remuneration paid to a resident of a Contracting State may also be taxed in the Contracting State from which they arise, if and insofar they are not taxed in the first mentioned Contracting State.
9 - With reference to article 25, paragraph 5:
In applying paragraph 5 of article 25, the Contracting States shall follow the constitutional and legal procedures necessary to obtain the requested information.
10 - With reference to article 26, paragraph 2:
It is agreed that the information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorises such use.
11 - With reference to the Convention:
It is understood that the provisions of the 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;
It is understood that the benefits foreseen in the 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;
It is understood that the provisions of the 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;
Nothing in the Convention shall preclude the application of the provisions of Peruvian Law Acts (Decretos Legislativos) numbers 662, 757 and 109 and Acts (Leyes) numbers 26221, 27342, 27343, 27909 as they are in force at the time of the signature of the Convention and as they may be amended from time to time without changing their principle or the optional nature of entering into the tax stability contracts. A person that is a party to a contract which grants tax stability in accordance with the above-mentioned provision shall, notwithstanding any rate of tax set out in the Convention, remains subject to the rates of tax stabilized by the contract for its duration;
Notwithstanding any other international agreement (including the General Agreement on Trade in Services), any dispute between the Contracting States concerning a tax to which the Convention applies shall be subject only to the provisions of the Convention.
In witness whereof the undersigned, duly authorized thereto, have signed this Protocol.
Done in duplicate at Lisbon this 19 day of November 2012, in the spanish, portuguese and english languages, all texts being equally authentic. In case of any divergence of interpretation of the text of this Protocol, the english text shall prevail.
For the Portuguese Republic:
Paulo de Faria Lince Núncio, State Secretary for Tax Affairs.
For the Republic of Peru:
Rafael Roncagliolo Orbegoso, Minister for Foreign Affairs.
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