Debates Parlamentares - Diário 105S2, p. 82 (2011-03-16)

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82 | II Série A - Número: 105S2 | 16 de Março de 2011

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:

1. 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.

2. 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. 3. 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.

4. 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. 5. 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‖). 6. 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.

82 | II Série A - Número: 105S2 | 16 de Março de 2011PROTOCOLTO 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 INCOMEOn 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:1. 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.2. 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. 3. 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.4. 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. 5. 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‖). 6. 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.

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