prop · GM0312 · 1999-01-01 00:00:00 — Regeringens proposition 1998/99:12 Dubbelbeskattningsavtal mellan och m.m. Regeringen överlämnar denna proposition till . Propositionens huvudsakliga innehåll I propositionen föreslås att godkänner ett dubbelbeskatt- ningsavtal mellan och och antar en lag om detta avtal. Det avses bli tillämpligt efter utgången av det år då avtalet träder i kraft. Vidare föreslås att uppräkningen av stater med vilka ingått avtal för undvikande av dubbelbeskattning i 16 § 2 mom. lagen (1947:576) om statlig inkomstskatt ändras. Uppräkningen har betydelse för om delägare i utländsk juridisk person skall kunna beskattas löpande för den utländska juridiska personens inkomster. 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 (1947:576) om statlig inkomstskatt 42 3 Ärendet och dess beredning 44 4 mellan och 44 4.1 Lagförslaget 44 4.2 Översiktligt om inkomstskattesystemet i 45 4.2.1 Bolagsbeskattning 45 4.2.2 Investeringsfrämjande åtgärder 45 4.2.3 Beskattning av fysiska personer 45 4.2.4 Källskatter 46 4.3 innehåll 46 4.3.1 Avtalets tillämpningsområde 46 4.3.2 Definitioner m.m. 47 4.3.3 Avtalets beskattningsregler 48 4.4 Metoder för undanröjande av dubbelbeskattning 53 4.4.1 Allmänt 53 4.4.2 Skattebefrielse för utdelning från bolag i till svenskt bolag 54 4.5 Särskilda bestämmelser 54 4.6 Regler mot offshoreverksamhet m.m. 55 4.7 Slutbestämmelser 56 5 Ändring i lagen om statlig inkomstskatt 57 Utdrag ur protokoll vid regeringssammanträde 59 1 Förslag till riksdagsbeslut Regeringen föreslår att 1. godkänner avtalet mellan och för undvikande av dubbelbeskattning och förhindrande av skatteflykt beträffande skatter på inkomst och på förmögenhet, 2. antar regeringens förslag till lag om dubbelbeskattningsavtal mellan och , 3. antar regeringens förslag till lag om ändring i lagen (1947:576) om statlig inkomstskatt. 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 beträffande skatter på inkomst och på förmögenhet som och undertecknade skall gälla som lag här i landet. Avtalet är avfattat på engelska och dess innehåll framgår av bilaga till denna lag. 2 § Avtalets beskattningsregler skall tillämpas endast om dessa medför inskränkning av den skattskyldighet i som annars skulle före- ligga. 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 och tillämpas a) i fråga om skatt på inkomst, på inkomst som förvärvas närmast efter den dag då avtalet träder i kraft eller senare, b) i fråga om skatt på förmögenhet, på förmögenhet som taxeras andra kalenderåret då avtalet träder i kraft eller . Bilaga (Översättning) CONVENTION BETWEEN THE GOVERNMENT OF THE KINGDOM OF AND THE GOVERNMENT OF THE REPUBLIC OF FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL AND FOR THE PREVENTION OF FISCAL EVASION The Government of the King- dom of and the Govern- ment of the Republic of , desiring, for the purpose of further developing and facilitating their economic relations, to conclude a Convention for the avoidance of double taxation with respect to taxes on income and on capital and for the prevention of fiscal , have agreed as follows: This Convention shall apply to persons who are residents of one or both of the Contracting States. The existing taxes to which the Convention shall apply are: a) in : (i) the tax on the profits of juridical persons; (ii) the taxes of small business activities; (iii) the individual income tax; (iv) the tax on property; (hereinafter referred to as Albanian tax ); b) in : (i) the national income tax, in- cluding the withholding tax on dividends; (ii) the income tax on non- residents; (iii) the income tax on non- resident artistes and athle- tes; (iv) the municipal income tax; (v) the national capital tax; (hereinafter referred to as Swedish tax ). The 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 taxes referred to in paragraph 1. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws. For the purposes of this Con- vention unless the context other- wise requires: a) the term means the Republic of , and when used in a geographical sense means the territory of the Republic of including territorial waters and air space over them as well as any area beyond the territorial seas of the Republic of which, in accordance with international law and the laws of the Republic of , is an area within which the Republic of may exercise rights with respect to the seabed and subsoil and their natural resources; b) the term means the Kingdom of and, when used in a geographical 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 jurisdiction; c) the terms a and the other mean or as the context requires; d) the term person includes an individual, a company and any other body of persons; e) the term company means any body corporate or any entity which is treated as a body corporate for tax purposes; f) 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; 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 international traffic means any transport by a ship or an aircraft operated by a resident of a , except when the ship or aircraft is operated solely between places in the other Contracting State; i) the term competent authori- ty means: (i) in the case of , the Minister of Finance or his authorized representative; (ii) 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. As regards the application of the Convention by a , any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that State concerning the taxes to which the Convention applies. For the purposes of this Con- vention, 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, pro- vided, however, that: a) 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; and b) in the case of a partnership this term applies only to the extent that the income derived by such partnership 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 indivi- dual is a resident of both Con- tracting States, then his status shall be determined as follows: a) he shall be deemed to be a re- sident 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 in 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 not a permanent 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 natio- nal; 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 provi- sions of paragraph 1 a person other than an individual is a resident of both Contracting States, then the competent authorities of the Con- tracting States shall seek to determine through mutual agree- ment the of which the person shall be deemed to be a resident for the purpose of this Convention. 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 estab- lishment 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 of natural resources; g) a site, a construction, assembly or installation project or supervisory activities in con- nection therewith, but only where such site, project or activities continue for a period of more than nine months, within any 12-month period commencing or ending in the calendar year concerned; and 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 nine months within any 12-month period, commencing or ending in the calendar year concerned. 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 or display of goods or merchandise belong- ing to the enterprise; b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the pur- pose of storage or display; c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the pur- pose 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 cha- racter. Notwithstanding the provi- sions of paragraphs 1 and 2, where a person other than an agent of an independent status to whom paragraph 5 applies is acting in a on behalf of an enterprise of the other , that enterprise shall be deemed to have a permanent in the first- mentioned State in respect of any activities which that person under- takes for the enterprise, if such a person has and habitually exer- cises in that State an authority to conclude contracts in the name of the enterprise, unless the activities of such person are limited to those mentioned in paragraph 3 which, if exercised through a fixed place of business, would not make this fixed place of business a per- manent under the provisions of that paragraph. 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. However, when the activities of such an agent are devoted or almost on behalf of that enterprise, he shall not be considered to be an agent of an independent status within the meaning of this paragraph. 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 pro- perty 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 pro- perty apply, , usufruct of immovable property and rights to variable or fixed payments as con- sideration for the working of, or the right to work, deposits, sources and other natural re- sources. Ships, boats and aircraft shall not be regarded as im- movable 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 the determination of the profits of a permanent establish- ment, there shall be allowed as deductions expenses which are in- curred for the purposes of the business of the permanent , including executive and general administrative ex- penses 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 apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude 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 operation of ships or aircraft in international traffic shall be taxable only in that State. 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 (). The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. Where: a) an enterprise of a participates directly or in- directly in the management, con- trol 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 have accrued to one of the enterprises, but, by reason of those condi- tions, 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 appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustments, 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 recipient is the beneficial owner of the dividends the tax so charged shall not exceed: a) 5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 25 per cent of the capital of the company paying the dividends; b) 15 per cent of the gross amount of the dividends in all other cases. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of these limitations. 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 of any kind, or other rights not being debt-claims, partici- pating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribu- tion 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 inde- pendent 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 or Article 14, 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 divi- dends 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 or a fixed base situated in that other State, nor subject the company s undistri- buted profits to a tax on the company s undistributed profits, even if the dividends paid or the undistributed profits consist or partly of profits or income arising in such other State. Interest arising in a Con- tracting State and paid to a resi- dent 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 recipient is the bene- ficial owner of the interest the tax so charged shall not exceed 5 per cent of the gross amount of the interest. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this limitation. 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, in- cluding 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. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a , on business in the other in which the interest arises, through a permanent situated therein, or performs in that other State independent personal servi- ces from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent or fixed base. In such cases the provisions of Article 7 or Article 14, as the case may be, shall apply. Interest shall be deemed to arise in a when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a or not, has in a a permanent or a fixed base in connection with which the indebtedness on which the interest is paid was incurred and such interest is borne by such perma- nent or fixed base, then such interest shall be deemed to arise in the State in which the permanent or fixed base is situated. 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 interest, having regard to the debt-claim for which it is paid, exceeds 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 , due regard being had to the other provisions of this Convention. Royalties arising in a Con- tracting State and paid to a resi- dent of the other may be taxed in that other State. However, such royalties may also be taxed in the in which they arise and according to the laws of that State, but if the recipient is the beneficial owner of the royalties, the tax so charged shall not exceed 5 per cent of the gross amount of the royalties. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this limitation. The term royalties as used in this Article means payments of any kind received as a considera- tion for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films and films or tapes for radio or television broad- casting, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experi- ence.