Debates Parlamentares - Diário 058, p. 1013 (1995-09-07)

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7 DE SETEMBRO DE 1995

1013

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, mat is established or sponsored by a person that is otherwise a resident under article 4, «Residence», notwithstanding mat all or part of the income of such organization, trust, or arrangement may be exempt from income taxation in mat 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 force».

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 mat such rules are consistent with the provisions of article 7.

7 — With reference to article 8 «Shipping and air transpon». — 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 die 1992 Model Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and on Capital of the Organization for Economic Cooperation and Development.

8 — With reference to article 10, «Dividends».—Although the substitute gift and inheritance tax (imposto sobre sucessões e doações por avença) imposed by Portugal is in fact a gift and inheritance tax and not an income tax, it is agreed that if the rate of such tax is increased above the rate applicable on the date of signature of this Convention, such increase shall not apply to dividends beneficially owned by residents of tine United States. It is understood that shares that have been subject to the substitute gift and inheritance tax are not subject to taxes imposed by Portugal upon transfer by death ot gift.

9 — With reference to article 11, «Interest». — Paragraphs 2 and 3 shall not apply to the US taxation of an excess inclusion derived by a resident of Portugal with respect to a residual interest in a real estate mortgage investment conduit (REMIC). Such amounts shall be taxable at the rate provided by domestic law.

10 — With reference to article 12, «Branch tax». — If Portugal establishes hereafter, under its taxation law, a tax comparable to the United States «branch tax», the provisions of this Convention in respect of the «branch tax» shall also apply in respect of such taxation, after any necessary adjustment.

11 —With reference to paragraph 2 of article 13, «Roy-alties». — Royalties received in consideration for the use of, or the right to use, containers in international traffic shall be taxable only in the Contracting State of which the recipient is a resident.

12 — With reference to paragraph 3 of article 14, «Capital gains»:

a) The term «activo» as used in paragraph 3 of the Portuguese text means «business property».

However, the term «activo» is also used in paragraph 2 as the translation of the term «property», it being understood that, in some cases, the term «business property» has a narrower meaning than the term «property».

b) It is understood that gains from the alienation or transfer of movable (personal) property that is effectively connected with a permanent establishment or fixed base that a resident of a Contracting State has or had in the other Contracting State and that is removed from the obter Contracting State may be taxed in that other Contracting State in accordance with its law, but only to the extent of the gain that has accrued as of the time of such removal, and may be taxed in the first-mentioned Contracting State in accordance with its law, but only to the extent of the gain accruing subsequent to that time of removal.

c) The tax liability, if any, imposed by Portugal on the incorporation of a permanent establishment of a U. S. company will be determined in accordance with Decree Law 6/ 93, implementing die provisions of Directive 90/434/EEC of 23 July, 1990, with respect to the incorporation of branches in Portugal of companies resident in other member states of tine European Union.

13 — With reference to article 15 «Independent personal services». — The term «fixed base» shall be interpreted according to paragraphs 3 and 4.of the commentary on article 14, «Independent personal services», of the 1992 Model Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and Capital of the Organization for Economic Cooperation arid Development and of any guidelines that, for the application of such term, may be developed by such Organization in the future.

14 — With reference to article 28, «Exchange of information*.— It is understood that the information that may be exchanged includes information from records of financial institutions, including records relating to third parties involved in transactions with the taxpayer(s) and records relating to persons referred to in paragraph 6 of article 17, «Limitation on benefits*, and that such information will be made available to the same extent as permitted by the domestic law of the Contracting State from which the information is requested. It is further understood that the appropriate tax authorities are empowered to request and agree to assist in obtaining such records pursuant to requests made by the other Contracting State in accordance with the provisions of article 28 and the preceding sentence of this paragraph.

For the Portuguese Republic:

Francisco Knopfli, Ambassador of Portugal.

For die United States of America:

John Komblum, Deputy Assistant Secretary of State.

7 DE SETEMBRO DE 19951013the 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, mat is established or sponsored by a person that is otherwise a resident under article 4, «Residence», notwithstanding mat all or part of the income of such organization, trust, or arrangement may be exempt from income taxation in mat 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 force».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 mat such rules are consistent with the provisions of article 7.7 — With reference to article 8 «Shipping and air transpon». — 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 die 1992 Model Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and on Capital of the Organization for Economic Cooperation and Development.8 — With reference to article 10, «Dividends».—Although the substitute gift and inheritance tax (imposto sobre sucessões e doações por avença) imposed by Portugal is in fact a gift and inheritance tax and not an income tax, it is agreed that if the rate of such tax is increased above the rate applicable on the date of signature of this Convention, such increase shall not apply to dividends beneficially owned by residents of tine United States. It is understood that shares that have been subject to the substitute gift and inheritance tax are not subject to taxes imposed by Portugal upon transfer by death ot gift.9 — With reference to article 11, «Interest». — Paragraphs 2 and 3 shall not apply to the US taxation of an excess inclusion derived by a resident of Portugal with respect to a residual interest in a real estate mortgage investment conduit (REMIC). Such amounts shall be taxable at the rate provided by domestic law.10 — With reference to article 12, «Branch tax». — If Portugal establishes hereafter, under its taxation law, a tax comparable to the United States «branch tax», the provisions of this Convention in respect of the «branch tax» shall also apply in respect of such taxation, after any necessary adjustment.11 —With reference to paragraph 2 of article 13, «Roy-alties». — Royalties received in consideration for the use of, or the right to use, containers in international traffic shall be taxable only in the Contracting State of which the recipient is a resident.12 — With reference to paragraph 3 of article 14, «Capital gains»:a) The term «activo» as used in paragraph 3 of the Portuguese text means «business property».However, the term «activo» is also used in paragraph 2 as the translation of the term «property», it being understood that, in some cases, the term «business property» has a narrower meaning than the term «property».b) It is understood that gains from the alienation or transfer of movable (personal) property that is effectively connected with a permanent establishment or fixed base that a resident of a Contracting State has or had in the other Contracting State and that is removed from the obter Contracting State may be taxed in that other Contracting State in accordance with its law, but only to the extent of the gain that has accrued as of the time of such removal, and may be taxed in the first-mentioned Contracting State in accordance with its law, but only to the extent of the gain accruing subsequent to that time of removal.c) The tax liability, if any, imposed by Portugal on the incorporation of a permanent establishment of a U. S. company will be determined in accordance with Decree Law 6/ 93, implementing die provisions of Directive 90/434/EEC of 23 July, 1990, with respect to the incorporation of branches in Portugal of companies resident in other member states of tine European Union.13 — With reference to article 15 «Independent personal services». — The term «fixed base» shall be interpreted according to paragraphs 3 and 4.of the commentary on article 14, «Independent personal services», of the 1992 Model Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and Capital of the Organization for Economic Cooperation arid Development and of any guidelines that, for the application of such term, may be developed by such Organization in the future.14 — With reference to article 28, «Exchange of information*.— It is understood that the information that may be exchanged includes information from records of financial institutions, including records relating to third parties involved in transactions with the taxpayer(s) and records relating to persons referred to in paragraph 6 of article 17, «Limitation on benefits*, and that such information will be made available to the same extent as permitted by the domestic law of the Contracting State from which the information is requested. It is further understood that the appropriate tax authorities are empowered to request and agree to assist in obtaining such records pursuant to requests made by the other Contracting State in accordance with the provisions of article 28 and the preceding sentence of this paragraph.For the Portuguese Republic:Francisco Knopfli, Ambassador of Portugal.For die United States of America:John Komblum, Deputy Assistant Secretary of State.

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