Debates Parlamentares - Diário 044, p. 725 (1995-05-25)

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25 DE MAIO DE 1995

725

tive now or hereafter accorded by the laws of the Contracting States. The Convention shall not restrict the benefits conferred under any other agreement between the Contracting States that entered into force prior to the date of signature of this Protocol.

it) Notwithstanding any other agreement to which the Contracting States may be parties, a dispute concerning whether a measure is within the scope of this Convention shall be considered only by the competent authorities of the Contracting States, as defined in subparagraph 1, 0. of article 3, «General définitions», of this Convention, and the procedures under this Convention exclusively shall apply to the under this Convention exclusively shall apply to the dispute.

Hi) Unless the competent authorities determine that a taxation measure is not within the scope of this Convention, the nondiscrimination obligations of this Convention exclusively shall apply with respect to that measure, except for such national treatment or most-favored-nation obligations as may apply to trade in goods under the General Agreement on Tariffs and Trade. No national treatment or most-favored-nation obligation of any other agreement shall apply with respect to that measure.

iv) For the purpose of this paragraph, a «measure» is a law, regulation, rule, procedure, decision, administrative action, or any other form of measure.

b) Notwithstanding any provision of the Convention except paragbraph c) of this provision, a Contracting State may tax its residents (as determined under article 4, «Résidence»), and the United States may tax its citizens, as if the Convention had not come into effect For this purpose, the term «citizen» shall include a former citizen whose loss of citizenship had as one of its principal purposes the avoidance of tax, but only for a period of 10 years following such loss. For the application of the preceding sentence to a resident of Portugal, the competent authorities shall consult under article 27, «Mutual agreement procédure», upon request by the Portuguese competent authority, on the purposes of such loss of citizenship.

c) The provisions of the preceding subparagraph b) shall not affect:

i) The benefits conferred by a Contracting State under paragraph 2 of article 9, «Associated en-terprises», under paragraph 3 of article 14, «Capital gains», under paragraphs 1, b), and 4 of article 20, «Pensions, annuities, alimony, and child support», and under articles 25, «Relief from double taxation», 26, «Non-discrimination», and 27, «Mutual agreement procédure»; and

it") The benefits conferred by a Contracting State under articles 21, «Government service», 22, «Teach-ers and researchers», 23, «Students and trainees», and 29, «Diplomatie agents and consular officers*, upon individuals who are neither citizens of, nor have immigrant status in, that State.

2 — With reference to article 2, «Taxes covered»: à) Article 2 does not apply to social security contributions established under Portuguese law.

b) Notwithstanding the provisions of paragraph 1, b), of article 2:

0 A company that is a resident of Portugal shall be exempt from the United States personal holding company tax in any taxable year only if all its stock : is owned by one or more individuals, who are not residents or citizens of the United States, in .their > individual capacities for. that entire year; and . ;

tiiuc '0 A company that is a resident of Portugal', shall be

, ic> exempt from the accumulated earnings tax jn any

/!: taxable year only if it is a company described in

)Jei< paragraph 1, c), of article 17, «Limitation on ben-

¿,-q efits».

-(:•!> '•' 13— With reference to paragraph 1 of article 4,,«Rcsi-

dence»:

d) The term «resident of a Contracting State» applies to partnerships, similar pass-through entities, estates, and trusts only to the extent that income derived by such partnership,

similar entity, estate, or trust is subject to lax in that State as'the income of a. resident, either in its hands or the hands of its partners or beneficiaries.

b) The term «resident of a Contracting State» includes:

i) Any not-for-profit organization constituted and maintained in that State; provided that the laws of such State or of a political or administrative subdivision thereof limit the use of the organization's resources, both currently and upon the dissolution or liquidation of such organization, to the accomplishment of the purposes that serve as the basis for such organization's exemption from income tax; and if) A pension trust and any other organization or arrangement constituted in that State and operated exclusively to administer or provide pension, retirement, or employee benefits, that is established or sponsored by a person that is otherwise a resident under article 4, «Residence», notwithstanding that all or part of the income of such organization, trust, or arrangement may be exempt from income taxation in that State;

c) Portugal shall treat a United States citizen or an alien admitted to the United States for permanent residence (a «green card» holder) as a resident of the United States only if he has a substantial presence in the United States, or would be a resident of the United States and not of a third country under the principles of subparagraphs a) and b) of paragraph 2 of article 4, «Residence».

4 — With reference to article 5, «Permanent establishment*. — The provisions of paragraph 4 shall apply only for the first 5 years in which the provisions of the Convention have effect, as provided in paragraph 2, b), of article 30, «Entry into forcé».

5 — With reference to article 6, «Income from immovable property (real property)». — It is understood that the provisions described therein shall also apply to income from associated movable (personal) property and from the provision of services for the maintenance or operation of immovable property (real property).

6 — With reference to paragraph 3 of article 7, «Business profits». — It is understood that each Contracting State may apply its own domestic law, whether based on tracing or allocation,' for attributing research and development expenses, interest and other similar expenses to a permanent establishment situated in its territory, provided that such rules are consistent with the provisions of article 7.

7 — With reference to article 8 «Shipping and air transport*. — The term «income from the operation of ships or aircraft in international traffic* will be defined in accordance with paragraphs 5 through 12 of the commentary on article 8, «Shipping, inland waterways transport and air transport* of the 1992. Model: Convention for the Avoidance of Dpuble Taxation with Respect-to Taxes on Income and on Capitals of the .Organization for Economic Cooperation and Development. • • -, • -. ,- >

25 DE MAIO DE 1995725tive now or hereafter accorded by the laws of the Contracting States. The Convention shall not restrict the benefits conferred under any other agreement between the Contracting States that entered into force prior to the date of signature of this Protocol.it) Notwithstanding any other agreement to which the Contracting States may be parties, a dispute concerning whether a measure is within the scope of this Convention shall be considered only by the competent authorities of the Contracting States, as defined in subparagraph 1, 0. of article 3, «General définitions», of this Convention, and the procedures under this Convention exclusively shall apply to the under this Convention exclusively shall apply to the dispute.Hi) Unless the competent authorities determine that a taxation measure is not within the scope of this Convention, the nondiscrimination obligations of this Convention exclusively shall apply with respect to that measure, except for such national treatment or most-favored-nation obligations as may apply to trade in goods under the General Agreement on Tariffs and Trade. No national treatment or most-favored-nation obligation of any other agreement shall apply with respect to that measure.iv) For the purpose of this paragraph, a «measure» is a law, regulation, rule, procedure, decision, administrative action, or any other form of measure.b) Notwithstanding any provision of the Convention except paragbraph c) of this provision, a Contracting State may tax its residents (as determined under article 4, «Résidence»), and the United States may tax its citizens, as if the Convention had not come into effect For this purpose, the term «citizen» shall include a former citizen whose loss of citizenship had as one of its principal purposes the avoidance of tax, but only for a period of 10 years following such loss. For the application of the preceding sentence to a resident of Portugal, the competent authorities shall consult under article 27, «Mutual agreement procédure», upon request by the Portuguese competent authority, on the purposes of such loss of citizenship.c) The provisions of the preceding subparagraph b) shall not affect:i) The benefits conferred by a Contracting State under paragraph 2 of article 9, «Associated en-terprises», under paragraph 3 of article 14, «Capital gains», under paragraphs 1, b), and 4 of article 20, «Pensions, annuities, alimony, and child support», and under articles 25, «Relief from double taxation», 26, «Non-discrimination», and 27, «Mutual agreement procédure»; andit") The benefits conferred by a Contracting State under articles 21, «Government service», 22, «Teach-ers and researchers», 23, «Students and trainees», and 29, «Diplomatie agents and consular officers*, upon individuals who are neither citizens of, nor have immigrant status in, that State.2 — With reference to article 2, «Taxes covered»: à) Article 2 does not apply to social security contributions established under Portuguese law.b) Notwithstanding the provisions of paragraph 1, b), of article 2:0 A company that is a resident of Portugal shall be exempt from the United States personal holding company tax in any taxable year only if all its stock : is owned by one or more individuals, who are not residents or citizens of the United States, in .their > individual capacities for. that entire year; and . ;tiiuc '0 A company that is a resident of Portugal', shall be, ic> exempt from the accumulated earnings tax jn any/!: taxable year only if it is a company described in)Jei< paragraph 1, c), of article 17, «Limitation on ben-¿,-q efits».-(:•!> '•' 13— With reference to paragraph 1 of article 4,,«Rcsi-dence»:d) The term «resident of a Contracting State» applies to partnerships, similar pass-through entities, estates, and trusts only to the extent that income derived by such partnership,similar entity, estate, or trust is subject to lax in that State as'the income of a. resident, either in its hands or the hands of its partners or beneficiaries.b) The term «resident of a Contracting State» includes:i) Any not-for-profit organization constituted and maintained in that State; provided that the laws of such State or of a political or administrative subdivision thereof limit the use of the organization's resources, both currently and upon the dissolution or liquidation of such organization, to the accomplishment of the purposes that serve as the basis for such organization's exemption from income tax; and if) A pension trust and any other organization or arrangement constituted in that State and operated exclusively to administer or provide pension, retirement, or employee benefits, that is established or sponsored by a person that is otherwise a resident under article 4, «Residence», notwithstanding that all or part of the income of such organization, trust, or arrangement may be exempt from income taxation in that State;c) Portugal shall treat a United States citizen or an alien admitted to the United States for permanent residence (a «green card» holder) as a resident of the United States only if he has a substantial presence in the United States, or would be a resident of the United States and not of a third country under the principles of subparagraphs a) and b) of paragraph 2 of article 4, «Residence».4 — With reference to article 5, «Permanent establishment*. — The provisions of paragraph 4 shall apply only for the first 5 years in which the provisions of the Convention have effect, as provided in paragraph 2, b), of article 30, «Entry into forcé».5 — With reference to article 6, «Income from immovable property (real property)». — It is understood that the provisions described therein shall also apply to income from associated movable (personal) property and from the provision of services for the maintenance or operation of immovable property (real property).6 — With reference to paragraph 3 of article 7, «Business profits». — It is understood that each Contracting State may apply its own domestic law, whether based on tracing or allocation,' for attributing research and development expenses, interest and other similar expenses to a permanent establishment situated in its territory, provided that such rules are consistent with the provisions of article 7.7 — With reference to article 8 «Shipping and air transport*. — The term «income from the operation of ships or aircraft in international traffic* will be defined in accordance with paragraphs 5 through 12 of the commentary on article 8, «Shipping, inland waterways transport and air transport* of the 1992. Model: Convention for the Avoidance of Dpuble Taxation with Respect-to Taxes on Income and on Capitals of the .Organization for Economic Cooperation and Development. • • -, • -. ,- >

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