prop · GM0382 · 1999-01-01 00:00:00 — Regeringens proposition 1998/99:82 Dubbelbeskattningsavtal mellan och m.m. Regeringen överlämnar denna proposition till . Propositionens huvudsakliga innehåll I propositionen föreslås att godkänner ett nytt dubbelbeskatt- ningsavtal mellan och och antar en lag om detta avtal. Det avses bli tillämpligt året då avtalet träder i kraft. Avtalet ersätter ett avtal . Vidare föreslås att dubbelbeskattningsavtalet mellan de nordiska länderna utvidgas till att omfatta landskapet i fråga om den finska kommunalskatten. Utvidgningen tillämpas på inkomst som förvärvas eller . Innehållsförteckning 1 Förslag till riksdagsbeslut 3 2 Lagtext 4 2.1 Förslag till lag om dubbelbeskattningsavtal mellan och 4 2.2 Förslag till lag om ändring i lagen (1996:1512) om dubbelbeskattningsavtal mellan de nordiska länderna 44 3 Ärendet och dess beredning 45 4 Dubbelbeskattningsavtal mellan och 45 5 Översiktligt om skattesystemet i 47 5.1 Bolagsbeskattning 47 5.2 Investeringsfrämjande åtgärder 47 5.3 Beskattning av fysiska personer 48 5.4 Källskatter 48 6 innehåll 49 6.1 Avtalets tillämpningsområde 49 6.2 Definitioner 50 6.3 Avtalets beskattningsregler 51 6.4 Metoder för undanröjande av dubbelbeskattning 57 6.5 Särskilda bestämmelser 58 6.6 Regler mot offshoreverksamhet 59 6.7 Slutbestämmelser 60 7 Ändring i lagen om dubbelbeskattningsavtal mellan de nordiska länderna 60 Utdrag ur protokoll vid regeringssammanträde 62 1 Förslag till riksdagsbeslut Regeringen föreslår att 1. godkänner avtalet mellan och för undvikande av dubbelbeskattning och förhindrande av skatteflykt beträffande skatter på inkomst, 2. antar regeringens förslag till lag om dubbelbeskattningsavtal mellan och , 3. antar regeringens förslag till lag om ändring i lagen (1996:1512) om dubbelbeskattningsavtal mellan de nordiska länderna. 2 Lagtext Regeringen har följande förslag till lagtext. 2.1 Förslag till lag om dubbelbeskattningsavtal mellan och Härigenom föreskrivs följande. 1 § Det avtal för undvikande av dubbelbeskattning och förhindrande av skatteflykt beträffande skatter på inkomst som och undertecknade skall gälla som lag här i landet. Avtalet är avfattat på engelska och dess innehåll framgår av bilagan till denna lag. 2 § Avtalets beskattningsregler skall tillämpas endast om dessa medför inskränkning av den skattskyldighet i som annars skulle gälla. 3 § Om en person som är bosatt i förvärvar inkomst som enligt bestämmelserna i avtalet beskattas endast i , skall sådan inkomst inte tas med vid taxeringen i . Denna lag träder i kraft den dag regeringen bestämmer. Denna lag skall tillämpas a) när det gäller källskatter: på belopp som betalas till personer med hemvist utanför källstaten kalenderåret då lagen träder i kraft eller senare, b) när det gäller annan skatt på inkomst: på beskattningsår som börjar kalenderåret då lagen träder i kraft eller . Genom lagen upphävs lagen (1987:1183) om dubbelbeskatt- ningsavtal mellan och samt förordningen (1989:900) om dubbelbeskattningsavtal mellan och . De upphävda författningarna skall dock fortfarande tillämpas a) när det gäller källskatter: på belopp som betalas till personer med hemvist utanför källstaten före kalenderåret då lagen träder i kraft, b) när det gäller annan skatt på inkomst: på beskattningsår som börjar före kalenderåret då lagen träder i kraft Bilaga (Översättning) THE CONVENTION BETWEEN THE KINGDOM OF AND THE REPUBLIC OF THE FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME The Government of the King- dom of and the Govern- ment of the Republic of the Desiring to conclude a Con- vention for the Avoidance of Double Taxation and the Pre- vention of Fiscal Evasion With Respect to Taxes on Income agreed as follows: This Convention shall apply to persons who are residents of one or both of the Contracting States. This Convention shall apply to taxes on income imposed on behalf of a or of its political subdivisions or local authorities, irrespective of the in which they are levied. There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property, and in the case of the , taxes on total amounts of wages or salaries paid by enterprises. The existing taxes to which the Convention shall apply are, (a) in : (i) the national income tax (den statliga inkomst- skatten), including the withholding tax on divi- dends (kupongskatten); (ii) the income tax on non- residents (den särskilda in- komstskatten för utom- lands bosatta); (iii) the income tax on non- resident artistes and athletes (den särskilda in- komstskatten för utom- lands bosatta artister m.fl.); (iv) the municipal income tax (den kommunala inkomst- skatten); and (v) the tax on means intended for expansion purposes (expansionsmedelsskatten); (hereinafter referred to as Swedish tax ); (b) in the : the income tax imposed under Title II and the stock transaction tax in accordance with Section 124 A of the National Internal Revenue Code of the Republic of the , (hereinafter referred to as tax ). This Convention shall apply also to any identical or sub- stantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws. In this Convention, unless the context otherwise requires: (a)(i)the term means the Kingdom of and, when used in a geo- graphical sense, includes the national territory, the territorial sea of as well as other areas over which in accordance with inter- national law exercises sovereign rights or juris- diction; (ii) the term means the Republic of the ; used in a geo- graphical sense, it means the archipelagic territory comprising the Republic of the as defined in its Constitution and laws, including adjacent areas and such other areas in the sea and in the air within which the Philippi- nes has sovereignty, juris- diction or similar rights under international law; (b) the terms a and the other mean or the as the context requires; (c) the term person includes an individual, a company and any other body of persons; (d) the term company means any body corporate or any entity which is treated as a body corporate for tax purposes; (e) the terms enterprise of a and enterprise of the other mean respectively an enterprise carried on by a resident of a and an enterprise carried on by a resident of the other Contracting State; (f) the term international traffic means any transport by a ship or aircraft operated by an enterprise of a , except when the ship or aircraft is operated solely between places in the other Contracting State; (g) the term national means: (i) any individual possessing the nationality of a Con- tracting State; (ii) any legal person, partner- ship or association deriving its status as such from the laws in force in a Con- tracting State; (h) the term competent authori- ty means: (i) in the case of , the Minister of Finance, his authorized representative or the authority which is designated as a competent authority for the purposes of this Convention; (ii) in the case of the , the Secretary of Finance/Commissioner of Internal Revenue or their authorized representative; or the authority which is designated as a competent authority for the purposes of this Convention. As regards the application of the Convention at any time by a , any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State. For the purposes of this Convention, the term resident of a means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, , place of management or any other criterion of a similar nature and also includes that State and any statutory body, political sub- division or local authority thereof. But this term does not include any person who is liable to tax in that State in respect only of income from sources in that State. How- ever, in the case of a partnership or estate the term applies only to the extent that the income derived by such partnership or estate is subject to tax in that State as the income of a resident, either in its hands or in the hands of its partners. Where by reason of the pro- visions of paragraph 1 an indi- vidual is a resident of both Con- tracting States, then his status shall be determined as follows: (a) he shall be deemed to be a resident of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests); (b) if the State in which he has his centre of vital interests cannot be determined, or if he has no per- manent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode; (c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national; (d) if he is a national of both States or of neither of them, the competent authorities of the Con- tracting States shall settle the question by mutual agreement. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, the competent authorities of the Contracting States shall endeavour to settle the question by mutual agreement. For the purposes of this Convention, the term permanent means a fixed place of business through which the business of an enterprise is or partly carried on. The term permanent includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; (f) a mine, an oil or gas well, a quarry or any other place of extraction or exploration of natural resources; (g) a site, a con- struction, assembly or installation project or supervisory activities in connection therewith, but only where such site, project or activi- ties continue for a period of more than six months; (h) the furnishing of services, including consultancy services, by an enterprise through employees or other personnel engaged by the enterprise for such purpose, but only where activities of that nature continue (for the same or a con- nected project) within a Con- tracting State for a period or periods aggregating more than six months within any twelve-month period. Notwithstanding the pre- ceding provisions of this Article, the term permanent establish- ment shall be deemed not to include: (a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting in- formation, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; (f) the maintenance of a fixed place of business solely for any combination of activities men- tioned in sub-paragraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. If a person is acting in a on behalf of an enterprise of the other Contracting State (other than an agent of an independent status to whom para- graph 5 applies) such enterprise shall be deemed to have a permanent in the first-mentioned State if: (a) the person has, and habitually exercises in that State, an authority to conclude contracts in the name of the enterprise, unless his activities are limited to those mentioned in paragraph 3 of this Article; or (b) the person has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise. An enterprise of a not be deemed to have a permanent in the other merely because it on business in that other State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. The fact that a company which is a resident of a Con- tracting State controls or is con- trolled by a company which is a resident of the other , or which on business in that other State (whether through a permanent or otherwise), shall not of itself constitute either company a per- manent of the other. Income from immovable property Income derived by a resident of a from immovable property (including income from agriculture or forestry) situated in the other may be taxed in that other State. The term immovable property shall have the meaning which it has under the law of the in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, , usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, deposits, sources and other natural resources; ships, boats and aircraft shall not be regarded as immovable property. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. The profits of an enterprise of a be taxable only in that State unless the enterprise on business in the other through a permanent situated therein. If the enterprise on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent . Subject to the provisions of paragraph 3, where an enterprise of a on business in the other through a permanent situated therein, there shall in each be attributed to that per- manent the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing independently with the enterprise of which it is a per- manent . In determining the profits of a permanent , there shall be allowed as deductions expenses which are incurred for the purposes of the permanent , including executive and general administrative expen- ses so incurred, whether in the State in which the permanent is situated or else- where. Insofar as it has been customary in a to determine the profits to be attri- buted to a permanent establish- ment on the basis of an apportion- ment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall pre- clude that from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, how- ever, be such that the result shall be in accordance with the prin- ciples contained in this Article. No profits shall be attributed to a permanent by reason of the mere purchase by that permanent of goods or merchandise for the enterprise. For the purposes of the pre- ceding paragraphs, the profits to be attributed to the permanent be determined by the same method year by year unless there is good and sufficient reason to the contrary. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. Profits of an enterprise of a from the opera- tion of ships or aircraft in inter- national traffic shall be taxable only in that State. Notwithstanding the provi- sions of paragraph 1, profits from sources within a derived by an enterprise of the other from the operation of ships or aircraft in international traffic may be taxed in the first-mentioned State but the tax so charged shall not exceed the lesser of: (a) one and one-half per cent of the gross revenues derived from sources in that State; and (b) the lowest rate that may be imposed on profits of the same kind derived under similar circum- stances by a resident of a third State. The provisions of paragraphs 1 and 2 shall also apply to profits derived from the participation in a pool, a joint business or an inter- national operating agency. With respect to profits derived by the air transport consortium () the provisions of paragraph 1 shall apply only to such part of the profits as corresponds to the participation held in that consortium by , the Swedish partner of (). Where: (a) an enterprise of a Con- tracting State participates directly or indirectly in the management, control or capital of an enterprise of the other , or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a and an enterprise of the other , and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly. Where a includes in the profits of an enterprise of that State and taxes accordingly profits on which an enterprise of the other has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropri- ate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other. Dividends paid by a company which is a resident of a Con- tracting State to a resident of the other may be taxed in that other State. However, such dividends may also be taxed in the of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other , the tax so charged shall not exceed: (a) 10 per cent of the gross amount of the dividends if the beneficial owner is a company (excluding partnerships) which holds directly at least 25 per cent of the capital of the paying company; (b) 15 per cent of the gross amount of the dividends in all other cases. This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. The term dividends as used in this Article means income from shares or other rights, not being debt-claims, participating in pro- fits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the taxation law of the State of which the company making the distri- bution is a resident. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a , on business in the other of which the company paying the dividends is a resident, through a permanent situated therein, or performs in that other State in- dependent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent or fixed base. In such case, the provisions of Article 7 (Business profits) or Article 14 (Independent personal services), as the case may be, shall apply. Where a company which is a resident of a derives profits or income from the other , that other State may not impose any tax on the dividends paid by the com- pany, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent estab- lishment or a fixed base situated in that other State, nor subject the company s undistributed profits to a tax on the company s undistri- buted profits, even if the dividends paid or the undistributed profits consist or partly of profits or income arising in such other State. Nothing in this Convention shall prevent either from imposing, apart from the corporate income tax, a tax on remittance of profits by a branch to its head office provided that the tax so imposed shall not exceed 10 per cent of the amount remitted. If in any Convention for the avoidance of double taxation concluded by the with a third State after the date of signature of this Convention any provision which excludes any item of income covered by Article 8 (and air transport) of this Convention from the tax men- tioned in this paragraph or reduces the rate to a rate which is lower than 10 per cent, such exclusion or lower rate shall automatically apply between and the . Interest arising in a Con- tracting State and paid to a resident of the other may be taxed in that other State. However, such interest may also be taxed in the in which it arises, and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other , the tax so charged shall not exceed 10 per cent of the gross amount of the interest. Notwithstanding the pro- visions of paragraph 2, interest arising in a and paid to a resident of the other be taxable only in that other State, if the interest is paid in respect of: (a) a bond, debenture or other similar obligation of the govern- ment of the first-mentioned Con- tracting State or a political sub- division or a local authority there- of; or (b) a loan made, refinanced, guaranteed or insured, or a credit extended, refinanced, guaranteed or insured by (i) in the case of the Phi- lippines, Bangko Sentral ng Pilipinas (BSP); (ii) in the case of , , the (), the (), () or any other institution of a public character with the objective to promote exports or development; (iii) other governmental agen- cies or lending institutions as may be specified and agreed in an exchange of notes between the com- petent authorities of the Contracting States. The term interest as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor s profits, and in particular, income from government securities and income from bonds or debentures includ- ing premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.