59–119 

114TH CONGRESS EXEC. REPT. " ! SENATE 2d Session 114–7 

TAX CONVENTION WITH HUNGARY 

FEBRUARY 8, 2016.—Ordered to be printed 

Mr. CORKER, from the Committee on Foreign Relations, 

submitted the following 

R E P O R T 

[To accompany Treaty Doc. 111–7] 

The Committee on Foreign Relations, to which was referred the 

Convention between the Government of the United States of America and the Government of the Republic of Hungary for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with 

Respect to Taxes on Income, signed on February 4, 2010, at Budapest, and a related agreement effected by exchange of notes on February 4, 2010 (the ‘‘Convention’’) (Treaty Doc. 111–7), having considered the same, reports favorably thereon with one declaration, 

as indicated in the resolution of advice and consent, and recommends that the Senate give its advice and consent to ratification 

thereof, as set forth in this report and the accompanying resolution 

of advice and consent. 

CONTENTS 

Page 

I. Purpose ........................................................................................................... 1 

II. Background .................................................................................................... 2 

III. Major Provisions ............................................................................................ 2 

IV. Entry Into Force ............................................................................................ 4 

V. Implementing Legislation ............................................................................. 4 

VI. Committee Action .......................................................................................... 4 

VII. Committee Comments ................................................................................... 4 

VIII. Text of Resolution of Advice and Consent to Ratification .......................... 5 

IX. Annex 1.—Technical Explanation ................................................................ 7 

I. PURPOSE

The purpose of the new Hungary Convention is to promote and 

facilitate trade and investment between the United States and 

Hungary. Principally, the Convention provides for reduced withholding rates on cross-border payments of dividends, interest, royalties, and other income, as well as the elimination of withholding 

taxes on cross-border dividend payments to pension funds. The 

Convention contains rigorous protections designed to protect 


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against ‘‘treaty shopping,’’ which is the inappropriate use of a tax 

treaty by third-country residents, and provisions to ensure the exchange of information between tax authorities in both countries. 

While the proposed Convention generally follows the 2006 U.S. 

Model Income Tax Treaty (the ‘‘U.S. Model’’), it deviates from the 

U.S. Model in certain respects discussed below. 

II. BACKGROUND

The United States has a tax treaty with Hungary that is currently in force, which was concluded in 1979 (Convention between 

the Government of the United States of America and the Government of the Hungarian People’s Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to 

Taxes on Income, signed at Washington, February 12, 1979). The 

new Convention was negotiated to bring U.S.-Hungary tax treaty 

relations into closer conformity with each country’s current tax 

treaty policies. For example, the proposed Convention contains 

comprehensive provisions designed to address ‘‘treaty-shopping.’’ 

The existing convention with Hungary signed in 1979 does not contain treaty shopping protections and, as a result, is susceptible to 

abuse by third-country investors. 

III. MAJOR PROVISIONS

A detailed article-by-article analysis of the Convention may be 

found in the Technical Explanation Published by the Department 

of the Treasury on June 7, 2011, which is included at Annex 1 to 

this report. In addition, the staff of the Joint Committee on Taxation prepared an analysis of the Convention, JCX-32-11 (May 20, 

2011), which was of great assistance to the committee in reviewing 

the Convention. A summary of the key provisions of the Convention 

is set forth below. 

GENERAL SCOPE

Article 1 defines the scope of the proposed treaty as applying 

only to ‘‘residents’’ of the United States and Hungary, except where 

the terms of the Convention provide otherwise. It contains a standard ‘‘saving clause’’ pursuant to which each country retains the 

right to tax its residents and citizens as if the treaty had not come 

into effect. This article also contains a standard provision providing 

that the treaty may not be applied to deny a taxpayer any benefits 

to which the taxpayer would be entitled under the domestic law of 

a country or under any other agreement between the two countries. 

COVERED TAXES

Article 2 provides that the proposed treaty applies to all taxes on 

income, including gains, irrespective of the manner in which they 

are levied. Except with respect to the benefits provided by Article 

24 (Non-Discrimination), state and local taxes, including property 

taxes, do not fall within the scope of the proposed treaty. 

DIVIDENDS

Articles 10 and 13 provide that dividends and certain gains derived by a resident of either country from sources within the other 

country (residence-country taxation) may be fully taxed by both 


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countries. However, the proposed treaty limits the rate of taxation 

that the source country may impose on certain dividends paid to 

a resident of the other country. The withholding tax rates on dividends are generally consistent with those contained in the U.S. 

Model treaty, but they represent a departure from the exemption 

from source-country withholding tax provided by several recent 

U.S. treaties and protocols for dividends paid by subsidiaries to 

parent corporations resident in the other treaty countries. 

INTEREST AND ROYALTIES

Consistent with the existing Convention, the proposed Convention generally eliminates source-country withholding taxes on 

cross-border interest and royalty payments. However, consistent 

with existing U.S. tax treaty policy, source-country tax may be imposed on certain contingent interest and payments from a U.S. real 

estate mortgage investment conduit. 

PENSIONS

In Article 17, the proposed Convention preserves the existing 

Convention’s rules that allow for exclusive residence-country taxation of pensions, and consistent with current U.S. tax treaty policy, provides for exclusive source-country taxation of social security 

payments. The Convention differs from the Model treaty in that it 

does not contain express provisions dealing with annuities, alimony, and child support payments, or certain provisions that deal 

with the tax-treatment of cross-border pension contributions. 

LIMITATION ON BENEFITS

Consistent with current U.S. treaty policy, Article 22 includes a 

‘‘Limitation on Benefits’’ provision, which is designed to avoid treaty-shopping by limiting the indirect use of a treaty’s benefits by 

persons who were not intended to take advantage of those benefits. 

The limitation of benefits provision states that a corporation or 

similar entity resident in a contracting state (i.e., the United States 

or Hungary) is not entitled to the benefits of the treaty unless that 

entity meets certain tests, such as carrying on an active trade or 

business, or being a publicly-traded company on certain specified 

stock exchanges. The provision is designed to identify entities that 

have established residency for tax-abuse purposes. This article’s 

limitation of benefits provision generally reflects the anti-treatyshopping provisions included in the U.S. Model treaty and more recent U.S. income tax treaties, but differs in a few respects that may 

permit some companies to qualify for treaty benefits under tests 

not found in the Model. For instance, the proposed treaty contains 

a derivative benefits test under which a company could qualify for 

treaty benefits if at least 95 percent of the aggregate voting power 

and value of its shares (and at least 50 percent of any disproportionate class of shares) are held by seven or fewer ‘‘equivalent 

beneficiaries.’’ The proposed treaty also contains a headquarters 

company test, under which a resident company would qualify if it 

meets the criteria to be considered a headquarters company of a 

multinational group. 


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EXCHANGE OF INFORMATION

Article 26 provides authority for the two countries to exchange 

tax information. Under Article 26, the United States is allowed to 

obtain information (including from financial institutions) from 

Hungary regardless of whether Hungary needs the information for 

its own tax purposes. 

IV. ENTRY INTO FORCE

The proposed Convention shall enter into force on the date when 

the United States and Hungary exchange instruments of ratification. The various provisions of this Convention shall have effect as 

described in paragraph 2 of Article 28 of the Convention. 

V. IMPLEMENTING LEGISLATION

As is the case generally with income tax treaties, the Convention 

is self-executing and does not require implementing legislation for 

the United States. 

VI. COMMITTEE ACTION

The committee held a public hearing on the Convention on October 29, 2015. Testimony was received from Robert Stack, Deputy 

Assistant Secretary (International Tax Affairs) at the U.S. Department of the Treasury and Thomas Barthold, Chief of Staff of the 

Joint Committee on Taxation. A transcript of the hearing is included in Annex 2 of Executive Report 114-1. 

On November 10, 2015, the committee considered the Protocol 

and ordered it favorably reported by voice vote, with a quorum 

present and without objection. 

In the 112th Congress, on July 26, 2011, the committee considered the Protocol and ordered it favorably reported by voice vote, 

with a quorum present and without objection. 

In the 113th Congress, on April 1, 2014, the committee again 

considered the Protocol and ordered it favorably reported by voice 

vote, with a quorum present and without objection. 

VII. COMMITTEE COMMENTS

The Committee on Foreign Relations believes that the Convention will stimulate increased trade and investment, reduce treaty 

shopping incentives, and promote closer co-operation between the 

United States and Hungary. The committee therefore urges the 

Senate to act promptly to give advice and consent to ratification of 

the Convention, as set forth in this report and the accompanying 

resolution of advice and consent. 

A. LIMITATION ON BENEFITS

The committee applauds the Treasury Department’s significant 

efforts to address treaty shopping both in this Convention and in 

other bilateral tax treaties. After careful examination of this Convention, as well as testimony and responses to questions for the 

record from the Treasury Department, the committee is of the view 

that the Convention’s protections against treaty-shopping are robust and will substantially deny treaty shoppers the benefit of the 

Convention. The committee believes that it is critical for the TreasVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\ER007.XXX ER007

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ury Department to closely monitor and keep the committee informed on the effectiveness of the above-mentioned provisions in 

discouraging and eliminating treaty-shopping under the Convention. 

B. DECLARATION ON THE SELF-EXECUTING NATURE OF THE

CONVENTION

The committee has included one declaration in the recommended 

resolution of advice and consent. The declaration states that the 

Convention is self-executing, as is the case generally with income 

tax treaties. Prior to the 110th Congress, the committee generally 

included such statements in the committee’s report, but in light of 

the Supreme Court decision in Medellin v. Texas, 128 S. Ct. 1346 

(2008), the committee determined that a clear statement in the 

Resolution is warranted. A further discussion of the committee’s 

views on this matter can be found in Section VIII of Executive Report 110–12. 

VIII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO

RATIFICATION

Resolved (two-thirds of the Senators present concurring therein), 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Convention between the Government of the United States of America 

and the Government of the Republic of Hungary for the Avoidance 

of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, signed at Budapest February 4, 2010, 

with a related agreement effected by exchange of notes on February 4, 2010 (the ‘‘Convention’’) (Treaty Doc. 111-7), subject to the 

declaration of section 2. 

SECTION 2. DECLARATION 

The advice and consent of the Senate under section 1 is subject 

to the following declaration: 

The Convention is self-executing. 


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1On the date of the signing of the Convention, the United States and Hungary exchanged diplomatic notes (‘‘Exchange of Notes’’) setting forth provisions and understandings related to the 

Convention and constituting an agreement between the two governments. 

IX. TECHNICAL EXPLANATION

DEPARTMENT OF THE TREASURY TECHNICAL EXPLANATION OF THE

CONVENTION BETWEEN THE GOVERNMENT OF THE UNITED STATES

OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF HUNGARY

FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION

OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME. 

This is a Technical Explanation of the Convention between the 

Government of the United States and the Government of the Republic of Hungary for the Avoidance of Double Taxation and the 

Prevention of Fiscal Evasion with Respect to Taxes on Income, 

signed on February 4, 2010 (the ‘‘Convention’’). 

Negotiations took into account the U.S. Treasury Department’s 

current tax treaty policy, and the Treasury Department’s Model Income Tax Convention. Negotiations also took into account the 

Model Tax Convention on Income and on Capital, published by the 

Organisation for Economic Cooperation and Development (the 

‘‘OECD Model’’), and recent tax treaties concluded by both countries.1

The Technical Explanation is an official guide to the Convention 

and an accompanying Exchange of Notes. It reflects the policies behind particular provisions in the Convention and Exchange of 

Notes, as well as understandings reached during the negotiations 

with respect to the application and interpretation of the Convention and Exchange of Notes. References in the Technical Explanation to ‘‘he’’ or ‘‘his’’ should be read to mean ‘‘he or she’’ or ‘‘his 

and her.’’ 

ARTICLE 1 (GENERAL SCOPE)

Paragraph 1 

Paragraph 1 of Article 1 provides that the Convention applies 

only to residents of the United States or Hungary except where the 

terms of the Convention provide otherwise. Under Article 4 (Resident) a person is generally treated as a resident of a Contracting 

State if that person is, under the laws of that State, liable to tax 

therein by reason of his domicile, citizenship, residence, place of 

management, place of incorporation, or any other criterion of a 

similar nature. 

However, if a person is considered a resident of both Contracting 

States, Article 4 provides rules for determining a State of residence 

(or no State of residence). This determination governs for all purposes of the Convention. 


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Certain provisions are applicable to persons who may not be residents of either Contracting State. For example, paragraph 1 of Article 24 (Non-Discrimination) applies to nationals of the Contracting States. Under Article 26 (Exchange of Information), information may be exchanged with respect to residents of third states. 

Paragraph 2 

Paragraph 2 states the generally accepted relationship both between the Convention and domestic law and between the Convention and other agreements between the Contracting States. That is, 

no provision in the Convention may restrict any exclusion, exemption, deduction, credit or other benefit accorded by the tax laws of 

the Contracting States, or by any other agreement to which both 

of the Contracting States are parties. The relationship between the 

nondiscrimination provisions of the Convention and other agreements is addressed not in paragraph 2 but in paragraph 3. 

Under paragraph 2, for example, if a deduction would be allowed 

under the U.S. Internal Revenue Code (the ‘‘Code’’) in computing 

the U.S. taxable income of a resident of Hungary, the deduction 

also is allowed to that person in computing taxable income under 

the Convention. Paragraph 2 also means that the Convention may 

not increase the tax burden on a resident of a Contracting States 

beyond the burden determined under domestic law. Thus, a right 

to tax given by the Convention cannot be exercised unless that 

right also exists under internal law. 

It follows that, under the principle of paragraph 2, a taxpayer’s 

U.S. tax liability need not be determined under the Convention if 

the Code would produce a more favorable result. A taxpayer may 

not, however, choose among the provisions of the Code and the 

Convention in an inconsistent manner in order to minimize tax. 

Thus, a taxpayer may use the Convention to reduce its taxable income, but may not combine treaty and Code rules in a way that 

would thwart the intent of either set of rules. For example, assume 

that a resident of Hungary has three separate businesses in the 

United States. One is a profitable permanent establishment and 

the other two are trades or businesses that would earn taxable income under the Code but that do not meet the permanent establishment threshold tests of the Convention. One is profitable and 

the other incurs a loss. Under the Convention, the income of the 

permanent establishment is taxable in the United States, and both 

the profit and loss of the other two businesses are ignored. Under 

the Code, all three would be subject to tax, but the loss would offset the profits of the two profitable ventures. The taxpayer may not 

invoke the Convention to exclude the profits of the profitable trade 

or business and invoke the Code to claim the loss of the loss trade 

or business against the profit of the permanent establishment. (See 

Rev. Rul. 84-17, 1984-1 C.B. 308.) If, however, the taxpayer invokes 

the Code for the taxation of all three ventures, he would not be 

precluded from invoking the Convention with respect, for example, 

to any dividend income he may receive from the United States that 

is not effectively connected with any of his business activities in 

the United States. 

Similarly, except as provided in paragraph 3, nothing in the Convention can be used to deny any benefit granted by any other 


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agreement to which both the United States and Hungary are parties. For example, if certain benefits are provided for military personnel or military contractors under a Status of Forces Agreement 

between the United States and Hungary, those benefits or protections will be available to residents of the Contracting States regardless of any provisions to the contrary (or silence) in the Convention. 

Paragraph 3 

Paragraph 3 relates to non-discrimination obligations of the Contracting States under the General Agreement on Trade in Services 

(the ‘‘GATS’’). The provisions of paragraph 3 are an exception to 

the rule provided in paragraph 2 of this Article under which the 

Convention shall not restrict in any manner any benefit now or 

hereafter accorded by any other agreement between the Contracting States. 

Subparagraph (a) of paragraph 3 provides that, unless the competent authorities determine that a taxation measure is not within 

the scope of the Convention, the national treatment obligations of 

the GATS shall not apply with respect to that measure. Further, 

any question arising as to the interpretation or application of the 

Convention, including in particular whether a measure is within 

the scope of the Convention shall be considered only by the competent authorities of the Contracting States, and the procedures 

under the Convention exclusively shall apply to the dispute. Thus, 

paragraph 3 of Article XXII (Consultation) of the GATS may not be 

used to bring a dispute before the World Trade Organization unless 

the competent authorities of both Contracting States have determined that the relevant taxation measure is not within the scope 

of Article 24 (Non-Discrimination) of the Convention. 

The term ‘‘measure’’ for these purposes is defined broadly in subparagraph (b) of paragraph 3. It would include a law, regulation, 

rule, procedure, decision, administrative action, or any similar provision or action. 

Paragraph 4 

Paragraph 4 contains the traditional saving clause found in all 

U.S. treaties. The Contracting States reserve their rights, except as 

provided in paragraph 5, to tax their residents and citizens as provided under their domestic laws, notwithstanding any provisions of 

the Convention to the contrary. For example, if a resident of Hungary performs professional services in the United States and the 

income from the services is not attributable to a permanent establishment in the United States, Article 7 (Business Profits) would by 

its terms prevent the United States from taxing the income. If, 

however, the resident of Hungary is also a citizen of the United 

States, the saving clause permits the United States to include the 

remuneration in the worldwide income of the citizen and subject it 

to tax under the normal Code rules (i.e., without regard to Code 

section 894(a)). However, subparagraph 5(a) of Article 1 preserves 

the benefits of special foreign tax credit rules applicable to the U.S. 

taxation of certain U.S. income of its citizens resident in Hungary. 

See paragraph 4 of Article 23 (Relief from Double Taxation). 


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For purposes of the saving clause, ‘‘residence’’ is determined 

under Article 4 (Resident). Thus, an individual who is a resident 

of the United States under the Code (but not a U.S. citizen) but 

who is determined to be a resident of the other Contracting State 

under the tie-breaker rules of Article 4 would be subject to U.S. tax 

only to the extent permitted by the Convention. The United States 

would not be permitted to apply its domestic law to that person to 

the extent that its law is inconsistent with the Convention. 

However, the person would still be treated as a U.S. resident for 

U.S. tax purposes other than determining the individual’s U.S. tax 

liability. For example, in determining under Code section 957 

whether a foreign corporation is a controlled foreign corporation, 

shares in that corporation held by the individual would be considered to be held by a U.S. resident. As a result, other U.S. citizens 

or residents might be deemed to be United States shareholders of 

a controlled foreign corporation subject to current inclusion of subpart F income recognized by the corporation. See Treas. Reg. section 301.7701(b)-7(a)(3). 

Under paragraph 4, each Contracting State also reserves its 

right to tax former citizens and former long-term residents for a period of ten years following the loss of such status. Thus, paragraph 

4 allows the United States to tax former U.S. citizens and former 

U.S. long-term residents in accordance with Section 877 of the 

Code. Section 877 generally applies to a former citizen or long-term 

resident of the United States who relinquishes citizenship or terminates long-term residency before June 17, 2008 if he fails to certify 

that he has complied with U.S. tax laws during the 5 preceding 

years, or if either of the following criteria exceed established 

thresholds: (a) the average annual net income tax of such individual for the period of 5 taxable years ending before the date of 

the loss of status, or (b) the net worth of such individual as of the 

date of the loss of status. 

The United States defines ‘‘long-term resident’’ as an individual 

(other than a U.S. citizen) who is a lawful permanent resident of 

the United States in at least 8 of the prior 15 taxable years. An 

individual is not treated as a lawful permanent resident for any 

taxable year if such individual is treated as a resident of Hungary 

under the Convention, or as a resident of any country other than 

the United States under the provisions of any other U.S. tax treaty, 

and in either case the individual does not waive the benefits of the 

relevant treaty. 

Paragraph 5 

Paragraph 5 sets forth certain exceptions to the saving clause. 

The referenced provisions are intended to provide benefits to citizens and residents even if such benefits do not exist under domestic law. 

Subparagraph (a) lists certain provisions of the Convention that 

are applicable to all citizens and residents of a Contracting State, 

despite the general saving clause rule of paragraph 4: 

(1) Paragraph 2 of Article 9 (Associated Enterprises) grants the 

right to a correlative adjustment with respect to income tax due on 

profits reallocated under Article 9. 


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(2) Paragraphs 1 b) and 2 of Article 17 (Pensions and Income 

from Social Security) provide exemptions from source or residence 

State taxation for certain pension distributions and social security 

payments. 

(3) Paragraph 3 of Article 17 provides an exemption for certain 

investment income of pension funds located in the other Contracting State. 

(4) Article 23 (Relief from Double Taxation) confers to citizens 

and residents of one Contracting State the benefit of a credit for 

income taxes paid to the other or an exemption for income earned 

in the other State. 

(5) Article 24 (Non-Discrimination) protects residents and nationals of one Contracting State against the adoption of certain discriminatory practices in the other Contracting State. 

(6) Article 25 (Mutual Agreement Procedure) confers certain benefits on citizens and residents of the Contracting States in order to 

reach and implement solutions to disputes between the two Contracting States. For example, the competent authorities are permitted to use a definition of a term that differs from an internal 

law definition. The statute of limitations may be waived for refunds, so that the benefits of an agreement may be implemented. 

Subparagraph (b) of paragraph 5 provides a different set of exceptions to the saving clause. The benefits referred to are all intended to be granted to temporary residents of a Contracting State 

(for example, in the case of the United States, holders of non-immigrant visas), but not to citizens or to persons who have acquired 

permanent residence in that State. If beneficiaries of these provisions travel from one of the Contracting States to the other, and 

remain in the other long enough to become residents under its internal law, but do not acquire permanent residence status (i.e., in 

the U.S. context, they do not become ‘‘green card’’ holders) and are 

not citizens of that State, the host State will continue to grant 

these benefits even if they conflict with the statutory rules. The 

benefits preserved by this paragraph are the host country exemptions for government service salaries and pensions under Article 18 

(Government Service), certain income of visiting students and 

trainees under Article 19 (Students and Trainees), certain income 

of visiting professors and teachers under Article 20 (Professors and 

Teachers), and the income of diplomatic agents and consular officers under Article 27 (Members of Diplomatic Missions and Consular Posts). 

Paragraph 6 

Paragraph 6 addresses special issues presented by fiscally transparent entities such as partnerships and certain estates and trusts. 

Because different countries frequently take different views as to 

when an entity is fiscally transparent, the risk of both double taxation and double non-taxation are relatively high. The intention of 

paragraph 6 is to eliminate a number of technical problems that arguably would have prevented investors using such entities from 

claiming treaty benefits, even though such investors would be subject to tax on the income derived through such entities. The provision also prevents the use of such entities to claim treaty benefits 

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ty is not subject to tax on the income in its State of residence. The 

provision, and the corresponding requirements of the other Articles 

of the Convention, should be read with those two goals in mind. 

In general, paragraph 6 relates to entities that are not subject 

to tax at the entity level, as distinct from entities that are subject 

to tax, but with respect to which tax may be relieved under an integrated system. This paragraph, as discussed in paragraph 1 of 

the Exchange of Notes, applies to any resident of a Contracting 

State who is entitled to income derived through an entity organized 

in either Contracting State that is treated as fiscally transparent 

under the laws of either Contracting State. Entities falling under 

this description in the United States include partnerships, common 

investment trusts under section 584 and grantor trusts. This paragraph also applies to U.S. limited liability companies (‘‘LLCs’’) that 

are treated as partnerships or as disregarded entities for U.S. tax 

purposes. Paragraph 1 of the Exchange of Notes provides further 

that paragraph 6 does not apply with respect to income received by 

an entity that is organized in a third state. 

Under paragraph 6, an item of income, profit or gain derived by 

a fiscally transparent entity organized in either Contracting State 

will be considered to be derived by a resident of a Contracting 

State if a resident is treated under the taxation laws of that State 

as deriving the item of income. For example, if a company that is 

a resident of Hungary pays interest to a U.S. entity that is treated 

as fiscally transparent for U.S. tax purposes, the interest will be 

considered derived by a resident of the U.S. only to the extent that 

the taxation laws of the United States treats one or more U.S. residents (whose status as U.S. residents is determined, for this purpose, under U.S. tax law) as deriving the interest for U.S. tax purposes. In the case of a partnership, the persons who are, under 

U.S. tax laws, treated as partners of the entity would normally be 

the persons whom the U.S. tax laws would treat as deriving the interest income through the partnership. Also, it follows that persons 

whom the United States treats as partners but who are not U.S. 

residents for U.S. tax purposes may not claim a benefit for the interest paid to the entity under the Convention, because they are 

not residents of the United States for purposes of claiming this 

treaty benefit. In contrast, if, for example, an entity is organized 

under U.S. laws and is classified as a corporation for U.S. tax purposes, interest paid by a company that is a resident of Hungary to 

the U.S. entity will be considered derived by a resident of the 

United States since the 

U.S. corporation is treated under U.S. taxation laws as a resident 

of the United States and as deriving the income. 

The same result obtains even if the entity were viewed differently under the tax laws of Hungary (e.g., as not fiscally transparent in the first example above where the entity is treated as a 

partnership for U.S. tax purposes). The results follow regardless of 

whether the entity is disregarded as a separate entity under the 

laws of one jurisdiction but not the other, such as a single owner 

entity that is viewed as a branch for U.S. tax purposes and as a 

corporation for tax purposes under the laws of Hungary. 

For example, income from U.S. sources received by an entity organized under the laws of the United States, which is treated for 


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tax purposes under the laws of Hungary as a corporation and is 

owned by a shareholder who is a resident of Hungary for its tax 

purposes, is not considered derived by the shareholder of that corporation even if, under the tax laws of the United States, the entity 

is treated as fiscally transparent. Rather, for purposes of the treaty, the income is treated as derived by the U.S. entity. 

These principles also apply to trusts to the extent that they are 

fiscally transparent in either Contracting State. For example, if X, 

a resident of Hungary, creates a revocable trust in the United 

States and names persons resident in a third country as the beneficiaries of the trust, the trust’s income would be regarded as being 

derived by a resident of Hungary only to the extent that the laws 

of Hungary treat X as deriving the income for its tax purposes, perhaps through application of rules similar to the U.S. ‘‘grantor trust’’ 

rules. 

Paragraph 6 is not an exception to the saving clause of paragraph 4. Accordingly, paragraph 6 does not prevent a Contracting 

State from taxing an entity that is treated as a resident of that 

State under its tax law. For example, if a U.S. LLC with members 

who are residents of Hungary elects to be taxed as a corporation 

for U.S. tax purposes, the United States will tax that LLC on its 

worldwide income on a net basis, without regard to whether Hungary views the LLC as fiscally transparent. 

ARTICLE 2 (TAXES COVERED)

This Article specifies the U.S. taxes and the taxes of Hungary to 

which the Convention applies. With two exceptions, the taxes specified in Article 2 are the covered taxes for all purposes of the Convention. A broader coverage applies, however, for purposes of Articles 24 (Non-Discrimination) and 26 (Exchange of Information and 

Administrative Assistance). Article 24 (Non-Discrimination) applies 

with respect to all taxes, including those imposed by state and local 

governments. Article 26 (Exchange of Information and Administrative Assistance) applies with respect to all taxes imposed at the national level. 

Paragraph 1 

Paragraph 1 identifies the category of taxes to which the Convention applies. Paragraph 1 is based on the U.S. and OECD Models 

and defines the scope of application of the Convention. 

The Convention applies to taxes on income, including gains, imposed on behalf of a Contracting State, irrespective of the manner 

in which they are levied. Except with respect to Article 24 (NonDiscrimination), state and local taxes are not covered by the Convention. 

Paragraph 2 

Paragraph 2 also is based on the U.S. and OECD Models and 

provides a definition of taxes on income and on capital gains. The 

Convention covers taxes on total income or any part of income and 

includes tax on gains derived from the alienation of movable or immovable property (real property), and taxes on the total amounts 

of wages or salaries paid by enterprises. The Exchange of Notes 

provides that the term ‘‘movable property’’ refers to all property 


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other than immovable property (real property) as defined in Article 

6 (Income from Immovable Property (Real Property)). The Convention does not apply, however, to social security or unemployment 

taxes, or any other charges where there is a direct connection between the levy and individual benefits. Nor does it apply to property taxes, except with respect to Article 24 (Non-Discrimination). 

Paragraph 3 

Paragraph 3 lists the taxes in force at the time of signature of 

the Convention to which the Convention applies. 

The existing covered taxes of Hungary are identified in subparagraph 3(a) as the personal income tax, the corporate tax, and the 

surtax. 

Subparagraph 3(b) provides that the existing U.S. taxes subject 

to the rules of the Convention are the Federal income taxes imposed by the Code, together with the excise taxes imposed with respect to private foundations (Code sections 4940 through 4948). Social security and unemployment taxes (Code sections 1401, 3101, 

3111 and 3301) are specifically excluded from coverage. 

Paragraph 4 

Under paragraph 4, the Convention will apply to any taxes that 

are identical, or substantially similar, to those enumerated in paragraph 3, and which are imposed in addition to, or in place of, the 

existing taxes after February 4, 2010, the date of signature of the 

Convention. The paragraph also provides that the competent authorities of the Contracting States will notify each other of any significant changes that have been made in their taxation laws. 

ARTICLE 3 (GENERAL DEFINITIONS)

Article 3 provides general definitions and rules of interpretation 

applicable throughout the Convention. Certain other terms are defined in other articles of the Convention. For example, the term 

‘‘resident of a Contracting State’’ is defined in Article 4 (Resident). 

The term ‘‘permanent establishment’’ is defined in Article 5 (Permanent Establishment). These definitions are used consistently 

throughout the Convention. Other terms, such as ‘‘dividends,’’ ‘‘interest’’ and ‘‘royalties’’ are defined in specific articles for purposes 

only of those articles. 

Paragraph 1 

Paragraph 1 defines a number of basic terms used in the Convention. The introduction to paragraph 1 makes clear that these 

definitions apply for all purposes of the Convention, unless the context requires otherwise. This latter condition allows flexibility in 

the interpretation of the treaty in order to avoid results not intended by the treaty’s negotiators. 

Subparagraph 1(a) defines the term ‘‘person’’ to include an individual, an estate, a trust, a partnership, a company and any other 

body of persons. The definition is significant for a variety of reasons. For example, under Article 4, only a ‘‘person’’ can be a ‘‘resident’’ and therefore eligible for most benefits under the treaty. 

Also, all ‘‘persons’’ are eligible to claim relief under Article 25 (Mutual Agreement Procedure). 


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The term ‘‘company’’ is defined in subparagraph 1(b) as a body 

corporate or an entity treated as a body corporate for tax purposes. 

The Exchange of Notes provides that partnerships established in 

Hungary are taxed by Hungary as corporations, and therefore fall 

within the definition of ‘‘company.’’ 

The terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of 

the other Contracting State’’ are defined in subparagraph 1(c) as an 

enterprise carried on by a resident of a Contracting State and an 

enterprise carried on by a resident of the other Contracting State. 

An enterprise of a Contracting State need not be carried on in that 

State. It may be carried on in the other Contracting State or a 

third state (e.g., a U.S. corporation doing all of its business in the 

other Contracting State would still be a U.S. enterprise). 

Subparagraph 1(c) further provides that these terms also encompass an enterprise conducted through an entity (such as a partnership) that is treated as fiscally transparent in the Contracting 

State where the entity’s owner is resident. The definition makes 

this point explicitly to ensure that the purpose of the Convention 

is not thwarted by an overly technical application of the term ‘‘enterprise of a Contracting State’’ to activities carried on through 

partnerships and similar entities. In accordance with Article 4 

(Resident), entities that are fiscally transparent in the country in 

which their owners are resident are not considered to be residents 

of a Contracting State (although income derived by such entities 

may be taxed as the income of a resident, if taxed in the hands of 

resident partners or other owners). It could be argued that an enterprise conducted by such an entity is not conducted by a resident 

of a Contracting State, and therefore would not benefit from provisions applicable to enterprises of a Contracting State. The definition is intended to make clear that an enterprise conducted by such 

an entity will be treated as carried on by a resident of a Contracting State to the extent its partners or other owners are residents. This approach is consistent with the Code, which under section 875 attributes a trade or business conducted by a partnership 

to its partners and a trade or business conducted by an estate or 

trust to its beneficiaries. 

Subparagraph 1(d) defines the term ‘‘enterprise’’ as any activity 

or set of activities that constitutes the carrying on of a business. 

The term ‘‘business’’ is not defined, but subparagraph (e) provides 

that it includes the performance of professional services and other 

activities of an independent character. Both subparagraphs are 

identical to definitions added to the OECD Model in connection 

with the deletion of Article 14 (Independent Personal Services) 

from the OECD Model. The inclusion of the two definitions is intended to clarify that income from the performance of professional 

services or other activities of an independent character is dealt 

with under Article 7 (Business Profits) and not Article 21 (Other 

Income). 

Subparagraph 1(f) defines the term ‘‘international traffic.’’ The 

term means any transport by a ship or aircraft except when such 

transport is solely between places within a Contracting State. This 

definition is applicable principally in the context of Article 8 (Shipping and Air Transport). The definition combines with paragraphs 

2 and 3 of Article 8 to exempt from tax by the source State income 


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from the rental of ships or aircraft that is earned both by lessors 

that are operators of ships and aircraft and by those lessors that 

are not (e.g., a bank or a container leasing company). 

The exclusion from international traffic of transport solely between places within a Contracting State means, for example, that 

carriage of goods or passengers solely between New York and Chicago would not be treated as international traffic, whether carried 

by a U.S. or a foreign carrier. The substantive taxing rules of the 

Convention relating to the taxation of income from transport, principally Article 8 (Shipping and Air Transport), therefore, would not 

apply to income from such carriage. Thus, if the carrier engaged in 

internal U.S. traffic were a resident of Hungary (assuming that 

were possible under U.S. law), the United States would not be required to exempt the income from that transport under Article 8. 

The income would, however, be treated as business profits under 

Article 7 (Business Profits), and therefore would be taxable in the 

United States only if attributable to a U.S. permanent establishment of the foreign carrier, and then only on a net basis. The gross 

basis U.S. tax imposed by section 887 would never apply under the 

circumstances described. If, however, goods or passengers are carried by a carrier resident in Hungary from a non-U.S. port to, for 

example, New York, and some of the goods or passengers continue 

on to Chicago, the entire transport would be international traffic. 

This would be true if the international carrier transferred the 

goods at the U.S. port of entry from a ship to a land vehicle, from 

a ship to a lighter, or even if the overland portion of the trip in 

the United States was handled by an independent carrier under 

contract with the original internation≥al carrier, so long as both 

parts of the trip were reflected in original bills of lading. For this 

reason, the Convention, following the U.S. Model, refers, in the definition of ‘‘international traffic,’’ to ‘‘such transport’’ being solely between places in the other Contracting State, while the OECD 

Model refers to the ship or aircraft being operated solely between 

such places. The formulation in the Convention is intended to make 

clear that, as in the above example, even if the goods are carried 

on a different aircraft for the internal portion of the international 

voyage than is used for the overseas portion of the trip, the definition applies to that internal portion as well as the external portion. 

Finally, a ‘‘cruise to nowhere,’’ i.e., a cruise beginning and ending 

in a port in the same Contracting State with no stops in a foreign 

port, would not constitute international traffic. 

Subparagraph 1(g) designates the ‘‘competent authorities’’ for the 

other Contracting State and the United States. The U.S. competent 

authority is the Secretary of the Treasury or his delegate. The Secretary of the Treasury has delegated the competent authority function to the Commissioner of Internal Revenue, who in turn has delegated the authority to the Deputy Commissioner (International) 

LMSB. With respect to interpretative issues, the Deputy Commissioner (International) LMSB acts with the concurrence of the Associate Chief Counsel (International) of the Internal Revenue Service. 

In the case of Hungary, the competent authority is the Minister of 

Finance or his authorized representative. 

The geographical scope of the Convention with respect to Hungary is set out in subparagraph 1(h). The term ‘‘Hungary’’ means 


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the Republic of Hungary and, when used in a geographical sense, 

means the territory of the Republic of Hungary. The geographical 

scope of the Convention with respect to the United States is set out 

in subparagraph 1(i). It encompasses the United States of America, 

including the states, the District of Columbia and the territorial 

sea of the United States. The term does not include Puerto Rico, 

the Virgin Islands, Guam or any other U.S. possession or territory. 

For certain purposes, the term ‘‘United States’’ includes the sea bed 

and subsoil of undersea areas adjacent to the territorial sea of the 

United States. This extension applies to the extent that the United 

States exercises sovereignty in accordance with international law 

for the purpose of natural resource exploration and exploitation of 

such areas. This extension of the definition applies, however, only 

if the person, property or activity to which the Convention is being 

applied is connected with such natural resource exploration or exploitation. Thus, it would not include any activity involving the sea 

floor of an area over which the United States exercised sovereignty 

for natural resource purposes if that activity was unrelated to the 

exploration and exploitation of natural resources. This result is 

consistent with the result that would be obtained under Section 

638, which treats the continental shelf as part of the United States 

for purposes of natural resource exploration and exploitation. 

The term ‘‘national,’’ as it relates to the United States and to 

Hungary, is defined in subparagraph 1(j). This term is relevant for 

purposes of Articles 19 (Government Service) and 24 (Non-Discrimination). A national of one of the Contracting States is (1) an 

individual who possesses the nationality (including, in the case of 

the United States, the citizenship as is provided in paragraph 4 of 

the Exchange of Notes) of that State, and (2) any legal person, 

partnership, association or other entity deriving its status, as such, 

from the law in force in the State where it is established. 

Subparagraph 1(k) defines the term ‘‘pension fund’’ to include 

any person established in a Contracting State that is generally exempt from income taxation in that State and that is operated principally to provide pension or retirement benefits or to earn income 

for the benefit of one or more such arrangements. In the case of 

the United States, the term ‘‘pension fund’’ includes the following: 

a trust providing pension or retirement benefits under a Code section 401(a) qualified pension plan, profit sharing or stock bonus 

plan, a Code section 403(a) qualified annuity plan, a Code section 

403(b) plan, a trust that is an individual retirement account under 

Code section 408, a Roth individual retirement account under Code 

section 408A, or a simple retirement account under Code section 

408(p), a trust providing pension or retirement benefits under a 

simplified employee pension plan under Code section 408(k), a 

trust described in section 457(g) providing pension or retirement 

benefits under a Code section 457(b) plan, and the Thrift Savings 

Fund (section 7701(j)). Section 401(k) plans and group trusts described in Revenue Ruling 81-100 and meeting the conditions of 

Revenue Ruling 2004-67 qualify as pension funds to the extent that 

they are covered by Code section 401(a). 

Subparagraph 1(l) defines the terms ‘‘a Contracting State’’ and 

‘‘the other Contracting State’’ to mean Hungary or the United 

States as the context requires. 


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Paragraph 2 

Terms that are not defined in the Convention are dealt with in 

paragraph 2. 

Paragraph 2 provides that in the application of the Convention, 

any term used but not defined in the Convention will have the 

meaning that it has under the law of the Contracting State whose 

tax is being applied, unless the context requires otherwise, or the 

competent authorities have agreed on a different meaning pursuant 

to Article 25 (Mutual Agreement Procedure). If the term is defined 

under both the tax and non-tax laws of a Contracting State, the 

definition in the tax law will take precedence over the definition in 

the non-tax laws. Finally, there also may be cases where the tax 

laws of a State contain multiple definitions of the same term. In 

such a case, the definition used for purposes of the particular provision at issue, if any, should be used. 

If the meaning of a term cannot be readily determined under the 

law of a Contracting State, or if there is a conflict in meaning 

under the laws of the two States that creates difficulties in the application of the Convention, the competent authorities may establish, pursuant to the provisions of Article 25 (Mutual Agreement 

Procedure) a common meaning in order to prevent double taxation 

or to further any other purpose of the Convention. This common 

meaning need not conform to the meaning of the term under the 

laws of either Contracting State. 

Under paragraph 2, the relevant law of a Contracting State is 

the law in effect at the time the treaty is being applied, not the 

law as in effect at the time the treaty was signed. The use of ‘‘ambulatory’’ definitions, however, may lead to results that are at variance with the intentions of the negotiators and of the Contracting 

States when the treaty was negotiated and ratified. The reference 

in both paragraphs 1 and 2 to the ‘‘context otherwise requir[ing]’’ 

a definition different from the treaty definition, in paragraph 1, or 

from the internal law definition of the Contracting State whose tax 

is being imposed, under paragraph 2, refers to a circumstance 

where the result intended by the Contracting States is different 

from the result that would obtain under either the paragraph 1 

definition or the statutory definition. Thus, flexibility in defining 

terms is necessary and permitted. 

ARTICLE 4 (RESIDENT)

This Article sets forth rules for determining whether a person is 

a resident of a Contracting State for purposes of the Convention. 

As a general matter only residents of the Contracting States may 

claim the benefits of the Convention. The treaty definition of residence is to be used only for purposes of the Convention. The fact 

that a person is determined to be a resident of a Contracting State 

under Article 4 does not automatically entitle that person to the 

benefits of the Convention. In addition to being a resident, a person 

also must qualify for benefits under Article 22 (Limitation on Benefits) in order to receive benefits conferred on residents of a Contracting State. 

The determination of residence for treaty purposes looks first to 

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ation laws of the Contracting States. As a general matter, a person 

who, under those laws, is a resident of one Contracting State and 

not of the other need look no further. For purposes of the Convention, that person is a resident of the State in which he is resident 

under internal law. If, however, a person is resident in both Contracting States under their respective taxation laws, the Article 

proceeds, where possible, to use tie-breaker rules to assign a single 

State of residence to such a person for purposes of the Convention. 

Paragraph 1 

The term ‘‘resident of a Contracting State’’ is defined in paragraph 1. In general, this definition incorporates the definitions of 

residence in U.S. law and that of Hungary by referring to a resident as a person who, under the laws of a Contracting State, is liable to tax therein by reason of his domicile, residence, citizenship, 

place of management, place of incorporation or any other similar 

criterion. Thus, residents of the United States include aliens who 

are considered U.S. residents under Code section 7701(b). Paragraph 1 also specifically includes the two Contracting States, and 

political subdivisions and local authorities of the two States, as 

residents for purposes of the Convention. 

Certain entities that are nominally liable to tax but that in practice are rarely required to pay tax also would generally be treated 

as residents and therefore accorded treaty benefits. For example, a 

U.S. Regulated Investment Company (RIC) and a U.S. Real Estate 

Investment Trust (REIT) are residents of the United States for 

purposes of the treaty. Although the income earned by these entities normally is not subject to U.S. tax in the hands of the entity, 

they are taxable to the extent that they do not currently distribute 

their profits, and therefore may be regarded as ‘‘liable to tax.’’ They 

also must satisfy a number of requirements under the Code in 

order to be entitled to special tax treatment. 

A person who is liable to tax in a Contracting State only in respect of income from sources within that State or capital situated 

therein or of profits attributable to a permanent establishment in 

that State will not be treated as a resident of that Contracting 

State for purposes of the Convention. Thus, a consular official of 

Hungary who is posted in the United States, who may be subject 

to U.S. tax on U.S. source investment income, but is not taxable 

in the United States on non-U.S. source income (see Code section 

7701(b)(5)(B)), would not be considered a resident of the United 

States for purposes of the Convention. Similarly, an enterprise of 

Hungary with a permanent establishment in the United States is 

not, by virtue of that permanent establishment, a resident of the 

United States. The enterprise generally is subject to U.S. tax only 

with respect to its income that is attributable to the U.S. permanent establishment, not with respect to its worldwide income, as it 

would be if it were a U.S. resident. 

Paragraph 2 

Paragraph 2 provides that certain tax-exempt entities such as 

pension funds and charitable organizations will be regarded as 

residents of a Contracting State regardless of whether they are 

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lished. The paragraph applies to legal persons organized under the 

laws of a Contracting State and established and maintained in that 

State to provide pensions or other similar benefits pursuant to a 

plan, or exclusively for religious, charitable, scientific, artistic, cultural, or educational purposes. Thus, a section 501(c) organization 

organized in the United States (such as a U.S. charity) that is generally exempt from tax under U.S. law is a resident of the United 

States for all purposes of the Convention. 

Paragraph 3 

If, under the laws of the two Contracting States, and, thus, 

under paragraph 1, an individual is deemed to be a resident of both 

Contracting States, a series of tie-breaker rules are provided in 

paragraph 3 to determine a single State of residence for that individual. These tests are to be applied in the order in which they are 

stated. The first test is based on where the individual has a permanent home. If that test is inconclusive because the individual has 

a permanent home available to him in both States, he will be considered to be a resident of the Contracting State where his personal 

and economic relations are closest (i.e., the location of his ‘‘center 

of vital interests’’). If that test is also inconclusive, or if he does not 

have a permanent home available to him in either State, he will 

be treated as a resident of the Contracting State where he maintains a habitual abode. If he has a habitual abode in both States 

or in neither of them, he will be treated as a resident of the Contracting State of which he is a national. If he is a national of both 

States or of neither, the matter will be considered by the competent 

authorities, who will assign a single State of residence. 

Paragraph 4 

Dual residents other than individuals (such as companies, trusts 

or estates) are addressed by paragraph 4. If such a person is, under 

the rules of paragraph 1, resident in both Contracting States, the 

competent authorities shall seek to determine a single State of residence for that person for purposes of the Convention. It the competent authorities are unable to reach such an agreement, that person may not claim any benefit provided by the Convention, except 

for those provided by Article 24 (Non-Discrimination) and Article 

25 (Mutual Agreement Procedure). 

Dual resident persons may, however, be treated as a resident of 

a Contracting State for purposes other than that of obtaining benefits under the Convention. For example, if a dual resident company 

pays a dividend to a resident of Hungary, the U.S. paying agent 

would withhold on that dividend at the appropriate treaty rate because reduced withholding is a benefit enjoyed by the resident of 

Hungary, not by the dual resident company. The dual resident 

company that paid the dividend would, for this purpose, be treated 

as a resident of the United States under the Convention. In addition, information relating to dual resident persons can be exchanged under the Convention because, by its terms, Article 26 

(Exchange of Information) is not limited to residents of the Contracting States. 


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ARTICLE 5 (PERMANENT ESTABLISHMENT)

This Article defines the term ‘‘permanent establishment,’’ a term 

that is significant for several articles of the Convention. The existence of a permanent establishment in a Contracting State is necessary under Article 7 (Business Profits) for the taxation by that 

State of the business profits of a resident of the other Contracting 

State. Articles 10 (Dividends), 11 (Interest), and 12 (Royalties) provide for reduced rates of tax at source on payments of these items 

of income to a resident of the other State only when the income is 

not attributable to a permanent establishment that the recipient 

has in the source State. The concept is also relevant in determining 

which Contracting State may tax certain gains under Article 13 

(Gains) and certain ‘‘other income’’ under Article 21 (Other Income). 

Paragraph 1 

The basic definition of the term ‘‘permanent establishment’’ is 

contained in paragraph 1. As used in the Convention, the term 

means a fixed place of business through which the business of an 

enterprise is wholly or partly carried on. As indicated in the OECD 

Commentary to Article 5 (see paragraphs 4 through 8), a general 

principle to be observed in determining whether a permanent establishment exists is that the place of business must be ‘‘fixed’’ in 

the sense that a particular building or physical location is used by 

the enterprise for the conduct of its business, and that it must be 

foreseeable that the enterprise’s use of this building or other physical location will be more than temporary. 

Paragraph 2 

Paragraph 2 lists a number of types of fixed places of business 

that constitute a permanent establishment. This list is illustrative 

and non-exclusive. According to paragraph 2, the term permanent 

establishment includes a place of management, a branch, an office, 

a factory, a workshop, and a mine, oil or gas well, quarry or other 

place of extraction of natural resources. 

Paragraph 3 

This paragraph provides rules to determine whether a building 

site or a construction, assembly or installation project, or an installation or drilling rig or ship used for the exploration of natural resources constitutes a permanent establishment for the contractor, 

driller, etc. Such a site or activity does not create a permanent establishment unless the site, project, etc. lasts, or the exploration 

activity continues, for more than twelve months. It is only necessary to refer to ‘‘exploration’’ and not ‘‘exploitation’’ in this context because exploitation activities are defined to constitute a permanent establishment under subparagraph 2(f). Thus, a drilling rig 

does not constitute a permanent establishment if a well is drilled 

in only six months, but if production begins in the following month 

the well becomes a permanent establishment as of that date. 

The twelve-month test applies separately to each site or project. 

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tracting State. A series of contracts or projects by a contractor that 

are interdependent both commercially and geographically are to be 

treated as a single project for purposes of applying the twelvemonth threshold test. For example, the construction of a housing 

development would be considered as a single project even if each 

house were constructed for a different purchaser. 

In applying this paragraph, time spent by a sub-contractor on a 

building site is counted as time spent by the general contractor at 

the site for purposes of determining whether the general contractor 

has a permanent establishment. However, for the sub-contractor 

itself to be treated as having a permanent establishment, the subcontractor’s activities at the site must last for more than 12 

months. If a sub-contractor is on a site intermittently, then, for 

purposes of applying the 12-month rule, time is measured from the 

first day the sub-contractor is on the site until the last day (i.e., 

intervening days that the sub-contractor is not on the site are 

counted). 

These interpretations of the Article are based on the Commentary to paragraph 3 of Article 5 of the OECD Model, which contains language that is substantially the same as that in the Convention. These interpretations are consistent with the generally accepted international interpretation of the relevant language in 

paragraph 3 of Article 5 of the Convention. 

If the twelve-month threshold is exceeded, the site or project constitutes a permanent establishment from the first day of activity. 

Paragraph 4 

This paragraph contains exceptions to the general rule of paragraph 1, listing a number of activities that may be carried on 

through a fixed place of business but which nevertheless do not create a permanent establishment. The use of facilities solely to store, 

display or deliver merchandise belonging to an enterprise does not 

constitute a permanent establishment of that enterprise. The maintenance of a stock of goods belonging to an enterprise solely for the 

purpose of storage, display or delivery, or solely for the purpose of 

processing by another enterprise does not give rise to a permanent 

establishment of the first-mentioned enterprise. The maintenance 

of a fixed place of business solely for the purpose of purchasing 

goods or merchandise, or for collecting information, for the enterprise, or for other activities that have a preparatory or auxiliary 

character for the enterprise, such as advertising, or the supply of 

information, do not constitute a permanent establishment of the 

enterprise. Moreover, subparagraph 4(f) provides that a combination of the activities described in the other subparagraphs of paragraph 4 will not give rise to a permanent establishment if the combination results in an overall activity that is of a preparatory or 

auxiliary character. 

Paragraph 5 

Paragraphs 5 and 6 specify when activities carried on by an 

agent or other person acting on behalf of an enterprise create a 

permanent establishment of that enterprise. Under paragraph 5, a 

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conclude contracts in the name of the enterprise. If, however, for 

example, his activities are limited to those activities specified in 

paragraph 4 which would not constitute a permanent establishment if carried on by the enterprise through a fixed place of business, the person does not create a permanent establishment of the 

enterprise. 

The Convention uses the OECD Model language ‘‘in the name of 

that enterprise,’’ rather than the U.S. Model language ‘‘binding on 

the enterprise.’’ Hungary and the United States do not intend this 

difference in language to be a substantive difference. As indicated 

in paragraph 32.1 to the OECD Commentaries on Article 5, paragraph 5 of the Article is not intended to be limited to agents who 

enter into contracts literally in the name of the enterprise. The 

paragraph also applies to ‘‘an agent who concludes contracts which 

are binding on the enterprise even if those contracts are not actually in the name of the enterprise.’’ 

The contracts referred to in paragraph 5 are those relating to the 

essential business operations of the enterprise, rather than ancillary activities. For example, if the person has no authority to conclude contracts in the name of the enterprise with its customers 

for, say, the sale of the goods produced by the enterprise, but it can 

enter into service contracts in the name of the enterprise for the 

enterprise’s business equipment, this contracting authority would 

not fall within the scope of the paragraph, even if exercised regularly. 

Paragraph 6 

Under paragraph 6, an enterprise is not deemed to have a permanent establishment in a Contracting State merely because it 

carries on business in that State through an independent agent, including a broker or general commission agent, if the agent is acting 

in the ordinary course of his business as an independent agent. 

Thus, there are two conditions that must be satisfied: the agent 

must be both legally and economically independent of the enterprise, and the agent must be acting in the ordinary course of its 

business in carrying out activities on behalf of the enterprise. 

Whether the agent and the enterprise are independent is a factual determination. Among the questions to be considered are the 

extent to which the agent operates on the basis of instructions from 

the enterprise. An agent that is subject to detailed instructions regarding the conduct of its operations or comprehensive control by 

the enterprise is not legally independent. 

In determining whether the agent is economically independent, 

a relevant factor is the extent to which the agent bears business 

risk. Business risk refers primarily to risk of loss. An independent 

agent typically bears risk of loss from its own activities. In the absence of other factors that would establish dependence, an agent 

that shares business risk with the enterprise, or has its own business risk, is economically independent because its business activities are not integrated with those of the principal. Conversely, an 

agent that bears little or no risk from the activities it performs is 

not economically independent and therefore is not described in 

paragraph 6. 


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Another relevant factor in determining whether an agent is economically independent is whether the agent acts exclusively or 

nearly exclusively for the principal. Such a relationship may indicate that the principal has economic control over the agent. A number of principals acting in concert also may have economic control 

over an agent. The limited scope of the agent’s activities and the 

agent’s dependence on a single source of income may indicate that 

the agent lacks economic independence. It should be borne in mind, 

however, that exclusivity is not in itself a conclusive test; an agent 

may be economically independent notwithstanding an exclusive relationship with the principal if it has the capacity to diversify and 

acquire other clients without substantial modifications to its current business and without substantial harm to its business profits. 

Thus, exclusivity should be viewed merely as a pointer to further 

investigation of the relationship between the principal and the 

agent. Each case must be addressed on the basis of its own facts 

and circumstances. 

Paragraph 7 

This paragraph clarifies that a company that is a resident of a 

Contracting State is not deemed to have a permanent establishment in the other Contracting State merely because it con≥trols, or 

is controlled by, a company that is a resident of that other Contracting State, or that carries on business in that other Contracting 

State. The determination whether a permanent establishment exists is made solely on the basis of the factors described in paragraphs 1 through 6 of the Article. Whether a company is a permanent establishment of a related company, therefore, is based solely 

on those factors and not on the ownership or control relationship 

between the companies. 

ARTICLE 6 (INCOME FROM IMMOVABLE PROPERTY (REAL PROPERTY))

This article deals with the taxation of income from immovable 

property (real property) situated in a Contracting State (the ‘‘situs 

State’’). The Article does not grant an exclusive taxing right to the 

situs State; the situs State is merely given the primary right to 

tax. The Article does not impose any limitation in terms of rate or 

form of tax imposed by the situs State, except that, as provided in 

paragraph 5, the situs State must allow the taxpayer an election 

to be taxed on a net basis. 

Paragraph 1 

The first paragraph of Article 6 states the general rule that income of a resident of a Contracting State derived from immovable 

property (real property) situated in the other Contracting State 

may be taxed in the Contracting State in which the property is situated. The paragraph specifies that income from immovable property (real property) includes income from agriculture and forestry. 

Given the availability of the net election in paragraph 5, taxpayers 

generally should be able to obtain the same tax treatment in the 

situs country regardless of whether the income is treated as business profits or immovable property (real property) income. 


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Paragraph 2 

The term ‘‘immovable property (real property)’’ is defined in 

paragraph 2 by reference to the internal law definition in the situs 

State. In the case of the United States, the term has the meaning 

given to it by Reg. a 1.897-1(b). In addition to the statutory definitions in the two Contracting States, the paragraph specifies certain 

additional classes of property that, regardless of internal law definitions, are within the scope of the term for purposes of the Convention. This expanded definition conforms to that in the OECD 

Model. The definition of ‘‘immovable property (real property)’’ for 

purposes of Article 6 is more limited than the expansive definition 

of ‘‘immovable property (real property)’’ in paragraph 1 of Article 

13 (Capital Gains). The Article 13 term includes not only immovable property (real property) as defined in Article 6 but certain 

other interests in immovable property (real property). 

Paragraph 3 

Paragraph 3 makes clear that all forms of income derived from 

the exploitation of immovable property (real property) are taxable 

in the Contracting State in which the property is situated. This includes income from any use of immovable property (real property), 

including, but not limited to, income from direct use by the owner 

(in which case income may be imputed to the owner for tax purposes) and rental income from the letting of immovable property 

(real property). In the case of a net lease of immovable property 

(real property), if a net election pursuant to paragraph 5 has not 

been made, the gross rental payment (before deductible expenses 

incurred by the lessee) is treated as income from the property. 

Other income closely associated with immovable property (real 

property) is covered by other Articles of the Convention, however, 

and not Article 6. For example, income from the disposition of an 

interest in immovable property (real property) is not considered 

‘‘derived’’ from immovable property (real property); taxation of that 

income is addressed in Article 13 (Gains). Interest paid on a mortgage on immovable property (real property) would be covered by 

Article 11 (Interest). Distributions by a U.S. Real Estate Investment Trust or certain regulated investment companies would fall 

under Article 13 in the case of distributions of U.S. real property 

gain or Article 10 (Dividends) in the case of distributions treated 

as dividends. Finally, distributions from a United States Real Property Holding Corporation are not considered to be income from the 

exploitation of immovable property (real property); such payments 

would fall under Article 10 or 13. 

Paragraph 4 

This paragraph specifies that the basic rule of paragraph 1 (as 

elaborated in paragraph 3) applies to income from immovable property (real property) of an enterprise. This clarifies that the situs 

country may tax the immovable property (real property) income (including rental income) of a resident of the other Contracting State 

in the absence of attribution to a permanent establishment in the 

situs State. This provision represents an exception to the general 

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utable to a permanent establishment in order to be taxable in the 

situs state. 

Paragraph 5 

The paragraph provides that a resident of one Contracting State 

that derives immovable property (real property) income from the 

other may elect, for any taxable year, to be subject to tax in that 

other State on a net basis, as though the income were attributable 

to a permanent establishment in that other State. The election may 

be terminated with the consent of the competent authority of the 

situs State. In the United States, revocation will be granted in accordance with the provisions of Treas. Reg. § 1.871-10(d)(2). 

ARTICLE 7 (BUSINESS PROFITS)

This Article provides rules for the taxation by a Contracting 

State of the business profits of an enterprise of the other Contracting State. 

Paragraph 1 

Paragraph 1 states the general rule that business profits of an 

enterprise of one Contracting State may not be taxed by the other 

Contracting State unless the enterprise carries on business in that 

other Contracting State through a permanent establishment (as defined in Article 5 (Permanent Establishment)) situated there. When 

that condition is met, the State in which the permanent establishment is situated may tax the enterprise on the income that is attributable to the permanent establishment. 

Although the Convention does not include a definition of ‘‘business profits,’’ the term is intended to cover income derived from 

any trade or business. In accordance with this broad definition, the 

term ‘‘business profits’’ includes income attributable to notional 

principal contracts and other financial instruments to the extent 

that the income is attributable to a trade or business of dealing in 

such instruments or is otherwise related to a trade or business (as 

in the case of a notional principal contract entered into for the purpose of hedging currency risk arising from an active trade or business). Any other income derived from such instruments is, unless 

specifically covered in another article, dealt with under Article 21 

(Other Income). 

The term ‘‘business profits’’ also includes income derived by an 

enterprise from the rental of tangible personal property (unless 

such tangible personal property consists of aircraft, ships or containers, income from which is addressed by Article 8 (Shipping and 

Air Transport)). The inclusion of income derived by an enterprise 

from the rental of tangible personal property in business profits 

means that such income earned by a resident of a Contracting 

State can be taxed by the other Contracting State only if the income is attributable to a permanent establishment maintained by 

the resident in that other State, and, if the income is taxable, it 

can be taxed only on a net basis. Income from the rental of tangible 

personal property that is not derived in connection with a trade or 

business is dealt with in Article 21. 

In addition, as a result of the definitions of ‘‘enterprise’’ and 

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come derived from the furnishing of personal services. Thus, a consulting firm resident in one State whose employees or partners perform services in the other State through a permanent establishment may be taxed in that other State on a net basis under Article 

7, and not under Article 14 (Income from Employment), which applies only to income of employees. With respect to the enterprise’s 

employees themselves, however, their salary remains subject to Article 14. 

Because this Article applies to income earned by an enterprise 

from the furnishing of personal services, the Article also applies to 

income derived by a partner resident in a Contracting State that 

is attributable to personal services performed in the other Contracting State through a partnership with a permanent establishment in that other State. Income which may be taxed under this 

Article includes all income attributable to the permanent establishment in respect of the performance of the personal services carried 

on by the partnership (whether by the partner himself, other partners in the partnership, or by employees assisting the partners) 

and any income from activities ancillary to the performance of 

those services (e.g., charges for facsimile services). 

Paragraph 2 

Paragraph 2 provides rules for the attribution of business profits 

to a permanent establishment. The Contracting States will attribute to a permanent establishment the profits that it would have 

earned had it been a distinct and separate enterprise engaged in 

the same or similar activities under the same or similar conditions 

and dealing wholly independently with the enterprise of which it 

is a permanent establishment. 

The ‘‘attributable to’’ concept of paragraph 2 provides an alternative to the analogous but somewhat different ‘‘effectively connected’’ concept in Code section 864(c). Depending on the circumstances, the amount of income ‘‘attributable to’’ a permanent 

establishment under Article 7 may be greater or less than the 

amount of income that would be treated as ‘‘effectively connected’’ 

to a U.S. trade or business under Code section 864. In particular, 

in the case of financial institutions, the use of internal dealings to 

allocate income within an enterprise may produce results under Article 7 that are significantly different than the results under the effectively connected income rules. For example, income from interbranch notional principal contracts may be taken into account 

under Article 7, notwithstanding that such transactions may be ignored for purposes of U.S. domestic law. 

The profits attributable to a permanent establishment may be 

from sources within or without a Contracting State. However, the 

business profits attributable to a permanent establishment include 

only those profits derived from the assets used, risks assumed, and 

activities performed by the permanent establishment. 

Paragraph 5 of the Exchange of Notes confirms that the arm’s 

length method of paragraph 2 consists of applying the OECD 

Transfer Pricing Guidelines, but taking into account the different 

economic and legal circumstances of a single legal entity (as opposed to separate but associated enterprises). Thus, any of the 

methods used in the Transfer Pricing Guidelines, including profits 


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methods, may be used as appropriate and in accordance with the 

Transfer Pricing Guidelines. However, the use of the Transfer Pricing Guidelines applies only for purposes of attributing profits within the legal entity. It does not create legal obligations or other tax 

consequences that would result from transactions having independent legal significance. 

One example of the different circumstances of a single legal entity is that an entity that operates through branches rather than 

separate subsidiaries generally will have lower capital requirements because all of the assets of the entity are available to support all of the entity’s liabilities (with some exceptions attributable 

to local regulatory restrictions). This is the reason that most commercial banks and some insurance companies operate through 

branches rather than subsidiaries. The benefit that comes from 

such lower capital costs must be allocated among the branches in 

an appropriate manner. This issue does not arise in the case of an 

enterprise that operates through separate entities, since each entity will have to be separately capitalized or will have to compensate 

another entity for providing capital (usually through a guarantee). 

Under U.S. domestic regulations, internal ‘‘transactions’’ generally are not recognized because they do not have legal significance. In contrast, the Convention provides that such internal dealings may be used to attribute income to a permanent establishment 

in cases where the dealings accurately reflect the allocation of risk 

within the enterprise. One example is that of global trading in securities. In many cases, banks use internal swap transactions to 

transfer risk from one branch to a central location where traders 

have the expertise to manage that particular type of risk. Under 

the Convention, such a bank may also use such swap transactions 

as a means of attributing income between the branches, if use of 

that method is the ‘‘best method’’ within the meaning of regulation 

section 1.482-1(c). The books of a branch will not be respected, however, when the results are inconsistent with a functional analysis. 

So, for example, income from a transaction that is booked in a particular branch (or home office) will not be treated as attributable 

to that location if the sales and risk management functions that 

generate the income are performed in another location. 

Because the use of profits methods is permissible under paragraph 2, it is not necessary for the Convention to include a provision corresponding to paragraph 4 of Article 7 of the OECD Model. 

Paragraph 3 

Paragraph 3 provides that in determining the business profits of 

a permanent establishment, deductions shall be allowed for the expenses incurred for the purposes of the permanent establishment, 

ensuring that business profits will be taxed on a net basis. This 

rule is not limited to expenses incurred exclusively for the purposes 

of the permanent establishment, but includes expenses incurred for 

the purposes of the enterprise as a whole, or that part of the enterprise that includes the permanent establishment. Deductions are to 

be allowed regardless of which accounting unit of the enterprise 

books the expenses, so long as they are incurred for the purposes 

of the permanent establishment. For example, a portion of the interest expense recorded on the books of the home office in one State 


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may be deducted by a permanent establishment in the other. The 

amount of the expense that must be allowed as a deduction is determined by applying the arm’s length principle. If a deduction 

would be allowed under the Code in computing the U.S. taxable income, the deduction also is allowed in computing taxable income 

under the Convention. However, a taxpayer may not combine Convention and Code rules in a way that would thwart the intent of 

either set of rules. For example, assume that a Hungarian taxpayer 

with a permanent establishment in the United States borrows $100 

to purchase U.S. tax exempt bonds, and that the $100 of tax-exempt bonds and the $100 of related debt would be treated as assets 

and liabilities of the permanent establishment. For purposes of 

computing the profits attributable to the permanent establishment 

under the Convention, both the tax exempt interest from the bonds 

and the interest expense from the related debt would be excluded. 

Thus, a taxpayer cannot take deductions for expenses in computing 

taxable income under the Convention to a greater extent than 

would be allowed under the Code where doing so would be inconsistent with the intent of the Code or the Convention. 

As noted above, the Exchange of Notes provides that the OECD 

Transfer Pricing Guidelines apply, by analogy, in determining the 

profits attributable to a permanent establishment. Accordingly, a 

permanent establishment may deduct payments made to its head 

office or another branch in compensation for services performed for 

the benefit of the branch. 

The method to be used in calculating that amount will depend 

on the terms of the arrangements between the branches and head 

office. For example, the enterprise could have a policy, expressed 

in writing, under which each business unit could use the services 

of lawyers employed by the head office. At the end of each year, 

the costs of employing the lawyers would be charged to each business unit according to the amount of services used by that business 

unit during the year. Since this appears to be a kind of cost-sharing arrangement and the allocation of costs is based on the benefits 

received by each business unit, such a cost allocation would be an 

acceptable means of determining a permanent establishment’s deduction for legal expenses. Alternatively, the head office could 

agree to employ lawyers at its own risk, and to charge an arm’s 

length price for legal services performed for a particular business 

unit. If the lawyers were under-utilized, and the ‘‘fees’’ received 

from the business units were less than the cost of employing the 

lawyers, then the head office would bear the excess cost. If the 

‘‘fees’’ exceeded the cost of employing the lawyers, then the head 

office would keep the excess to compensate it for assuming the risk 

of employing the lawyers. If the enterprise acted in accordance 

with this agreement, this method would be an acceptable alternative method for calculating a permanent establishment’s deduction for legal expenses. 

A permanent establishment cannot be funded entirely with debt, 

but must have sufficient capital to carry on its activities as if it 

were a distinct and separate enterprise. To the extent that the permanent establishment has not been attributed capital for profit attribution purposes, a Contracting State may attribute such capital 

to the permanent establishment, in accordance with the arm’s 


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length principle, and deny an interest deduction to the extent necessary to reflect that capital attribution. The method prescribed by 

U.S. domestic law for making this attribution is found in Treas. 

Reg. section 1.882-5. Both section 1.882-5 and the method prescribed the Convention start from the premise that all of the capital of the enterprise supports all of the assets and risks of the enterprise, and therefore the entire capital of the enterprise must be 

allocated to its various businesses and offices. 

However, section 1.882-5 does not take into account the fact that 

some assets create more risk for the enterprise than do other assets. An independent enterprise would need less capital to support 

a perfectly-hedged U.S. Treasury security than it would need to 

support an equity security or other asset with significant market 

and/or credit risk. Accordingly, in some cases section 1.882-5 would 

require a taxpayer to allocate more capital to the United States, 

and therefore would reduce the taxpayer’s interest deduction more, 

than is appropriate. To address these cases, the Convention allows 

a taxpayer to apply a more flexible approach that takes into account the relative risk of its assets in the various jurisdictions in 

which it does business. In particular, in the case of financial institutions other than insurance companies, the amount of capital attributable to a permanent establishment is determined by allocating the institution’s total equity between its various offices on 

the basis of the proportion of the financial institution’s risk-weighted assets attributable to each of them. This recognizes the fact that 

financial institutions are in many cases required to risk-weight 

their assets for regulatory purposes and, in other cases, will do so 

for business reasons even if not required to do so by regulators. 

However, risk-weighting is more complicated than the method prescribed by section 1.882-5. 

Accordingly, to ease this administrative burden, taxpayers may 

choose to apply the principles of Treas. Reg. section 1.882-5(c) to 

determine the amount of capital allocable to its U.S. permanent establishment, in lieu of determining its allocable capital under the 

risk-weighted capital allocation method provided by the Convention, even if it has otherwise chosen the principles of Article 7 rather than the effectively connected income rules of U.S. domestic law. 

Paragraph 4 

Paragraph 4 provides that no business profits can be attributed 

to a permanent establishment merely because it purchases goods or 

merchandise for the enterprise of which it is a part. This paragraph is essentially identical to paragraph 5 of Article 7 of the 

OECD Model. This rule applies only to an office that performs 

functions for the enterprise in addition to purchasing. The income 

attribution issue does not arise if the sole activity of the office is 

the purchase of goods or merchandise because such activity does 

not give rise to a permanent establishment under Article 5 (Permanent Establishment). A common situation in which paragraph 4 is 

relevant is one in which a permanent establishment purchases raw 

materials for the enterprise’s manufacturing operation conducted 

outside the United States and sells the manu≥factured product. 

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lishment with respect to its sales activities, no profits are attributable to it with respect to its purchasing activities. 

Paragraph 5 

Paragraph 5 provides that profits shall be determined by the 

same method each year, unless there is good reason to change the 

method used. This rule assures consistent tax treatment over time 

for permanent establishments. It limits the ability of both the Contracting State and the enterprise to change accounting methods to 

be applied to the permanent establishment. It does not, however, 

restrict a Contracting State from imposing additional requirements, such as the rules under Code section 481, to prevent 

amounts from being duplicated or omitted following a change in accounting method. Such adjustments may be necessary, for example, 

if the taxpayer switches from using the domestic rules under section 864 in one year to using the rules of Article 7 in the next. Also, 

if the taxpayer switches from Convention-based rules to U.S. domestic rules, it may need to meet certain deadlines for making 

elections that are not necessary when applying the rules of the 

Convention. 

Paragraph 6 

Paragraph 6 coordinates the provisions of Article 7 and other 

provisions of the Convention. Under this paragraph, when business 

profits include items of income that are dealt with separately under 

other articles of the Convention, the provisions of those articles 

will, except when they specifically provide to the contrary, take 

precedence over the provisions of Article 7. For example, the taxation of dividends will be determined by the rules of Article 10 

(Dividends), and not by Article 7, except where, as provided in 

paragraph 6 of Article 10, the dividend is attributable to a permanent establishment. In the latter case the provisions of Article 7 

apply. Thus, an enterprise of one State deriving dividends from the 

other State may not rely on Article 7 to exempt those dividends 

from tax at source if they are not attributable to a permanent establishment of the enterprise in the other State. By the same 

token, if the dividends are attributable to a permanent establishment in the other State, the dividends may be taxed on a net income basis at the source State full corporate tax rate, rather than 

on a gross basis under Article 

As provided in Article 8 (Shipping and Air Transport), income derived from shipping and air transport activities in international 

traffic described in that Article is taxable only in the country of 

residence of the enterprise regardless of whether it is attributable 

to a permanent establishment situated in the source State. 

Paragraph 7 

Paragraph 7 incorporates into the Convention the rule of Code 

section 864(c)(6). Like the Code section on which it is based, paragraph 7 provides that any income or gain attributable to a permanent establishment during its existence is taxable in the Contracting State where the permanent establishment is situated, even 

if the payment of that income or gain is deferred until after the 

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spect to paragraphs 1 and 2 of Article 7 (Business Profits), paragraph 6 of Article 10, paragraph 4 of Article 11 (Interest), paragraph 3 of Articles 12 (Royalties), paragraph 5 of Article 13 (Capital Gains) and paragraph 2 of Article 21 (Other Income). 

The effect of this rule can be illustrated by the following example. Assume a company that is a resident of Hungary and that 

maintains a permanent establishment in the United States winds 

up the permanent establishment’s business and sells the permanent establishment’s inventory and assets to a U.S. buyer at the 

end of year 1 in exchange for an interest-bearing installment obligation payable in full at the end of year 3. Despite the fact that 

Article 13’s threshold requirement for U.S. taxation is not met in 

year 3 because the company has no permanent establishment in 

the United States, the United States may tax the deferred income 

payment recognized by the company in year 3. 

Relationship to Other Articles 

This Article is subject to the saving clause of paragraph 4 of Article 1 (General Scope) of the Model. Thus, if a citizen of the United 

States who is a resident of Hungary under the treaty derives business profits from the United States that are not attributable to a 

permanent establishment in the United States, the United States 

may, subject to the special foreign tax credit rules of paragraph 4 

of Article 23 (Relief from Double Taxation), tax those profits, notwithstanding the provision of paragraph 1 of this Article which 

would exempt the income from U.S. tax. 

The benefits of this Article are also subject to Article 22 (Limitation on Benefits). Thus, an enterprise of Hungary that derives income effectively connected with a U.S. trade or business may not 

claim the benefits of Article 7 unless the resident carrying on the 

enterprise qualifies for such benefits under Article 22. 

ARTICLE 8 (SHIPPING AND AIR TRANSPORT)

This Article governs the taxation of profits from the operation of 

ships and aircraft in international traffic. The term ‘‘international 

traffic’’ is defined in subparagraph 1(f) of Article 3 (General Definitions). 

Paragraph 1 

Paragraph 1 provides that profits derived by an enterprise of a 

Contracting State from the operation in international traffic of 

ships or aircraft are taxable only in that Contracting State. Because paragraph 6 of Article 7 (Business Profits) defers to Article 

8 with respect to shipping income, such income derived by a resident of one of the Contracting States may not be taxed in the other 

State even if the enterprise has a permanent establishment in that 

other State. Thus, if a U.S. airline has a ticket office in Hungary, 

Hungary may not tax the airline’s profits attributable to that office 

under Article 7. Since entities engaged in international transportation activities normally will have many permanent establishments in a number of countries, the rule avoids difficulties that 

would be encountered in attributing income to multiple permanent 

establish≥ments if the income were covered by Article 7. 


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Paragraph 2 

The income from the operation of ships or aircraft in international traffic that is exempt from tax under paragraph 1 is defined in paragraph 2. 

In addition to income derived directly from the operation of ships 

and aircraft in international traffic, this definition also includes 

certain items of rental income. First, income of an enterprise of a 

Contracting State from the rental of ships or aircraft on a full basis 

(i.e., with crew) is income of the lessor from the operation of ships 

and aircraft in international traffic and, therefore, is exempt from 

tax in the other Contracting State under paragraph 1. Also, paragraph 2 encompasses income from the lease of ships or aircraft on 

a bareboat basis (i.e., without crew), either when the income is incidental to other income of the lessor from the operation of ships or 

aircraft in international traffic, or when the ships or aircraft are 

operated in international traffic by the lessee. If neither of those 

two conditions apply, income from the bareboat rentals would constitute business profits. The coverage of Article 8 is therefore 

broader than that of Article 8 of the OECD Model, which covers 

bareboat leasing only when it is incidental to other income of the 

lessor from the operation of ships of aircraft in international traffic. 

Paragraph 2 also clarifies, consistent with the Commentary to 

Article 8 of the OECD Model, that income earned by an enterprise 

from the inland transport of property or passengers within either 

Contracting State falls within Article 8 if the transport is undertaken as part of the international transport of property or passengers by the enterprise. Thus, if a U.S. shipping company contracts to carry property from Hungary to a U.S. city and, as part 

of that contract, it transports the property by truck from its point 

of origin to an airport in Hungary (or it contracts with a trucking 

company to carry the property to the airport) the income earned by 

the U.S. shipping company from the overland leg of the journey 

would be taxable only in the United States. Similarly, Article 8 also 

would apply to all of the income derived from a contract for the 

international transport of goods, even if the goods were transported 

to the port by a lighter, not by the vessel that carried the goods 

in international waters. 

Finally, certain non-transport activities that are an integral part 

of the services performed by a transport company, or are ancillary 

to the enterprise’s operation of ships or aircraft in international 

traffic, are understood to be covered in paragraph 1, though they 

are not specified in paragraph 2. These include, for example, the 

provision of goods and services by engineers, ground and equipment maintenance and staff, cargo handlers, catering staff and customer services personnel. Where the enterprise provides such goods 

to, or performs services for, other enterprises and such activities 

are directly connected with or ancillary to the enterprise’s operation of ships or aircraft in international traffic, the profits from 

the provision of such goods and services to other enterprises will 

fall under this paragraph. 

For example, enterprises engaged in the operation of ships or aircraft in international traffic may enter into pooling arrangements 

for the purposes of reducing the costs of maintaining facilities 

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tries. For instance, where an airline enterprise agrees (for example, 

under an International Airlines Technical Pool agreement) to provide spare parts or maintenance services to other airlines landing 

at a particular location (which allows it to benefit from these services at other locations), activities carried on pursuant to that agreement will be ancillary to the operation of aircraft in international 

traffic by the enterprise. 

Also, advertising that the enterprise may do for other enterprises 

in magazines offered aboard ships or aircraft that it operates in 

international traffic or at its business locations, such as ticket offices, is ancillary to its operation of these ships or aircraft. Profits 

generated by such advertising fall within this paragraph. Income 

earned by concessionaires, however, is not covered by Article 8. 

These interpretations of paragraph 1 also are consistent with the 

Commentary to Article 8 of the OECD Model. 

Paragraph 3 

Under this paragraph, profits of an enterprise of a Contracting 

State from the use, maintenance or rental of containers (including 

equipment for their transport) are exempt from tax in the other 

Contracting State, unless those containers are used for transport 

solely in the other Contracting State. This result obtains under 

paragraph 3 regardless of whether the recipient of the income is 

engaged in the operation of ships or aircraft in international traffic, 

and regardless of whether the enterprise has a permanent establishment in the other Contracting State. Only income from the use, 

maintenance or rental of containers that is incidental to other income from international traffic is covered by Article 8 of the OECD 

Model. 

Paragraph 4 

This paragraph clarifies that the provisions of paragraphs 1 and 

3 also apply to profits derived by an enterprise of a Contracting 

State from participation in a pool, joint business or international 

operating agency. This refers to various arrangements for international cooperation by carriers in shipping and air transport. For 

example, airlines from two countries may agree to share the transport of passengers between the two countries. They each will fly 

the same number of flights per week and share the revenues from 

that route equally, regardless of the number of passengers that 

each airline actually transports. Paragraph 4 makes clear that with 

respect to each carrier the income dealt with in the Article is that 

carrier’s share of the total transport, not the income derived from 

the passengers actually carried by the airline. This paragraph corresponds to paragraph 4 of Article 8 of the OECD Model. 

Relationship to Other Articles 

The taxation of gains from the alienation of ships, aircraft or containers is not dealt with in this Article but in paragraph 6 of Article 13 (Gains). 

As with other benefits of the Convention, the benefit of exclusive 

residence country taxation under Article 8 is available to an enterprise only if it is entitled to benefits under Article 22 (Limitation 

on Benefits). 


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This Article also is subject to the saving clause of paragraph 4 

of Article 1 (General Scope) of the Model. Thus, if a citizen of the 

United States who is a resident of Hungary derives profits from the 

operation of ships or aircraft in international traffic, notwithstanding the exclusive residence country taxation in paragraph 1 

of Article 8, the United States may, subject to the special foreign 

tax credit rules of paragraph 4 of Article 23 (Relief from Double 

Taxation), tax those profits as part of the worldwide income of the 

citizen. (This is an unlikely situation, however, because non-tax 

considerations (e.g., insurance) generally result in shipping activities being carried on in corporate form.) 

ARTICLE 9 (ASSOCIATED ENTERPRISES)

This Article incorporates in the Convention the arm’s-length 

principle reflected in the U.S. domestic transfer pricing provisions, 

particularly Code section 482. It provides that when related enterprises engage in a transaction on terms that are not arm’s-length, 

the Contracting States may make appropriate adjustments to the 

taxable income and tax liability of such related enterprises to reflect what the income and tax of these enterprises with respect to 

the transaction would have been had there been an arm’s-length 

relationship between them. 

Paragraph 1 

This paragraph addresses the situation where an enterprise of a 

Contracting State is related to an enterprise of the other Contracting State, and there are arrangements or conditions imposed 

between the enterprises in their commercial or financial relations 

that are different from those that would have existed in the absence of the relationship. Under these circumstances, the Contracting States may adjust the income (or loss) of the enterprise to 

reflect what it would have been in the absence of such a relationship. 

The paragraph identifies the relationships between enterprises 

that serve as a prerequisite to application of the Article. As the 

Commentary to the OECD Model makes clear, the necessary element in these relationships is effective control, which is also the 

standard for purposes of section 482. Thus, the Article applies if an 

enterprise of one State participates directly or indirectly in the 

management, control, or capital of the enterprise of the other State. 

Also, the Article applies if any third person or persons participate 

directly or indirectly in the management, control, or capital of enterprises of different States. For this purpose, all types of control 

are included, i.e., whether or not legally enforceable and however 

exercised or exercisable. 

The fact that a transaction is entered into between such related 

enterprises does not, in and of itself, mean that a Contracting State 

may adjust the income (or loss) of one or both of the enterprises 

under the provisions of this Article. If the conditions of the transaction are consistent with those that would be made between independent persons, the income arising from that trans≥action should 

not be subject to adjustment under this Article. 

Similarly, the fact that associated enterprises may have concluded arrangements, such as cost sharing arrangements or genVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00035 Fmt 6601 Sfmt 6601 E:\HR\OC\ER007.XXX ER007

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eral services agreements, is not in itself an indication that the two 

enterprises have entered into a non-arm’s-length transaction that 

should give rise to an adjustment under paragraph 1. Both related 

and unrelated parties enter into such arrangements (e.g., joint venturers may share some development costs). As with any other kind 

of transaction, when related parties enter into an arrangement, the 

specific arrangement must be examined to see whether or not it 

meets the arm’s-length standard. In the event that it does not, an 

appropriate adjustment may be made, which may include modifying the terms of the agreement or re-characterizing the transaction to reflect its substance. 

It is understood that the ‘‘commensurate with income’’ standard 

for determining appropriate transfer prices for intangibles, added 

to Code section 482 by the Tax Reform Act of 1986, was designed 

to operate consistently with the arm’s-length standard. The implementation of this standard in the section 482 regulations is in accordance with the general principles of paragraph 1 of Article 9 of 

the Convention, as interpreted by the OECD Transfer Pricing 

Guidelines. 

This Article also permits tax authorities to deal with thin capitalization issues. They may, in the context of Article 9, scrutinize 

more than the rate of interest charged on a loan between related 

persons. They also may examine the capital structure of an enterprise, whether a payment in respect of that loan should be treated 

as interest, and, if it is treated as interest, under what circumstances interest deductions should be allowed to the payor. 

Paragraph 2 of the Commentary to Article 9 of the OECD Model, 

together with the U.S. observation set forth in paragraph 15, sets 

forth a similar understanding of the scope of Article 9 in the context of thin capitalization. 

Paragraph 2 

When a Contracting State has made an adjustment that is consistent with the provisions of paragraph 1, and the other Contracting State agrees that the adjustment was appropriate to reflect arm’s-length conditions, that other Contracting State is obligated to make a correlative adjustment (sometimes referred to as 

a ‘‘corresponding adjustment’’) to the tax liability of the related person in that other Contracting State. Although the OECD Model 

does not specify that the other Contracting State must agree with 

the initial adjustment before it is obligated to make the correlative 

adjustment, the Commentary makes clear that the paragraph is to 

be read that way. 

As explained in the Commentary to Article 9 of the OECD Model, 

Article 9 leaves the treatment of ‘‘secondary adjustments’’ to the 

laws of the Contracting States. When an adjustment under Article 

9 has been made, one of the parties will have in its possession 

funds that it would not have had at arm’s length. The question 

arises as to how to treat these funds. In the United States the general practice is to treat such funds as a dividend or contribution to 

capital, depending on the relationship between the parties. Under 

certain circumstances, the parties may be permitted to restore the 

funds to the party that would have the funds had the transactions 

been entered into on arm’s length terms, and to establish an acVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00036 Fmt 6601 Sfmt 6601 E:\HR\OC\ER007.XXX ER007

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count payable pending restoration of the funds. See Rev. Proc. 99- 

32, 1999-2 C.B. 296. 

The Contracting State making a secondary adjustment will take 

the other provisions of the Convention, where relevant, into account. For example, if the effect of a secondary adjustment is to 

treat a U.S. corporation as having made a distribution of profits to 

its parent corporation in the other Contracting State, the provisions of Article 10 (Dividends) will apply, and the United States 

may impose a 5 percent withholding tax on the dividend. Also, if 

under Article 23 (Relief from Double Taxation) the other State generally gives a credit for taxes paid with respect to such dividends, 

it would also be required to do so in this case. 

The competent authorities are authorized by paragraph 3 of Article 25 (Mutual Agreement Procedure) to consult, if necessary, to resolve any differences in the application of these provisions. For example, there may be a disagreement over whether an adjustment 

made by a Contracting State under paragraph 1 was appropriate. 

If a correlative adjustment is made under paragraph 2, it is to 

be implemented, pursuant to paragraph 2 of Article 25 (Mutual 

Agreement Procedure), notwithstanding any time limits or other 

procedural limitations in the law of the Contracting State making 

the adjustment. If a taxpayer has entered a closing agreement (or 

other written settlement) with the United States prior to bringing 

a case to the competent authorities, the U.S. competent authority 

will endeavor only to obtain a correlative adjustment from Hungary. See, Rev. Proc. 2006-54, 2006-49 I.R.B. 1035, Section 7.05. 

Relationship to Other Articles 

The saving clause of paragraph 4 of Article 1 (General Scope) 

does not apply to paragraph 2 of Article 9 by virtue of an exception 

to the saving clause in subparagraph 5(a) of Article 1. Thus, even 

if the statute of limitations has run, a refund of tax can be made 

in order to implement a correlative adjustment. Statutory or procedural limitations, however, cannot be overridden to impose additional tax, because paragraph 2 of Article 1 provides that the Convention cannot restrict any statutory benefit. 

ARTICLE 10 (DIVIDENDS)

Article 10 provides rules for the taxation of dividends paid by a 

company that is a resident of one Contracting State to a beneficial 

owner that is a resident of the other Contracting State. The Article 

provides for full residence-State taxation of such dividends and a 

limited source-State right to tax. Article 10 also provides rules for 

the imposition of a tax on branch profits by the State of source. Finally, the Article prohibits a State from imposing taxes on a company resident in the other Contracting State, other than a branch 

profits tax, on undistributed earnings. 

Paragraph 1 

The right of a shareholder’s Contracting State of residence to tax 

dividends arising in the source country is preserved by paragraph 

1, which permits a Contracting State to tax its residents on dividends paid to them by a company that is a resident of the other 

Contracting State. For dividends from any other source paid to a 


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resident, Article 21 (Other Income) grants the residence country exclusive taxing jurisdiction (other than for dividends attributable to 

a permanent establishment in the other State). 

Paragraph 2 

The State of source also may tax dividends beneficially owned by 

a resident of the other State, subject to the limitations of paragraphs 2 and 3. Paragraph 2 generally limits the rate of withholding tax in the State of source on dividends paid by a company 

resident in that State to 15 percent of the gross amount of the dividend. If, however, the beneficial owner of the dividend is a company resident in the other State and owns directly shares representing at least 10 percent of the voting power of the company 

paying the dividend, then the rate of withholding tax in the State 

of source is limited to 5 percent of the gross amount of the dividend. For application of this paragraph by the United States, 

shares are considered voting shares if they provide the power to 

elect, appoint or replace any person vested with the powers ordinarily exercised by the board of directors of a U.S. corporation. 

The benefits of paragraph 2 may be granted at the time of payment by means of reduced rate of withholding tax at source. It also 

is consistent with the paragraph for tax to be withheld at the time 

of payment at full statutory rates, and the treaty benefit to be 

granted by means of a subsequent refund so long as such procedures are applied in a reasonable manner. 

The determination of whether the ownership threshold for subparagraph 2(a) is met for purposes of the 5 percent maximum rate 

of withholding tax is made on the date on which entitlement to the 

dividend is determined. Thus, in the case of a dividend from a U.S. 

company, the determination of whether the ownership threshold is 

met generally would be made on the dividend record date. 

Paragraph 2 does not affect the taxation of the profits out of 

which the dividends are paid. The taxation by a Contracting State 

of the income of its resident companies is governed by the internal 

law of the Contracting State, subject to the provisions of paragraph 

4 of Article 24 (Non- Discrimination). 

The term ‘‘beneficial owner’’ is not defined in the Convention, 

and is, therefore, defined as under the internal law of the country 

imposing tax (i.e., the source country). The beneficial owner of the 

dividend for purposes of Article 10 is the person to which the income is attributable under the laws of the source State. Thus, if a 

dividend paid by a corporation that is a resident of one of the 

States (as determined under Article 4 (Residence)) is received by a 

nominee or agent that is a resident of the other State on behalf of 

a person that is not a resident of that other State, the dividend is 

not entitled to the benefits of this Article. However, a dividend received by a nominee on behalf of a resident of that other State 

would be entitled to benefits. These limitations are confirmed by 

paragraph 12 of the Commentary to Article 10 of the OECD Model. 

See also paragraph 24 of the Commentary to Article 1 of the OECD 

Model. 

Special rules, however, apply to shares that are held through fiscally transparent entities. In that case, the rules of paragraph 6 of 

Article 1 (General Scope) and paragraph 1 of the Exchange of 


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Notes will apply to determine whether the dividends should be 

treated as having been derived by a resident of a Contracting 

State. Residence State principles shall be used to determine who 

derives the dividend, to assure that the dividends for which the 

source State grants benefits of the Convention will be taken into 

account for tax purposes by a resident of the residence State. 

Source State principles of beneficial ownership shall then apply to 

determine whether the person who derives the dividends, or another resident of the other Contracting State, is the beneficial 

owner of the dividend. If the person who derives the dividend 

under paragraph 6 of Article 1 would not be treated a nominee, 

agent, custodian, conduit, etc. under the source State’s principles 

for determining beneficial ownership as, that person will be treated 

as the beneficial owner of the income, profits or gains for purposes 

of the Convention. 

Assume for instance, that a company resident in Hungary pays 

a dividend to LLC, an entity organized in the United States and 

treated as fiscally transparent for U.S. tax purposes, but as a company for Hungarian tax purposes. USCo, a company incorporated 

in the United States, is the sole interest holder in LLC. Paragraph 

6 of Article 1 provides that USCo derives the dividend. Hungary’s 

principles of beneficial ownership shall then be applied to USCo. If 

under the laws of Hungary USCo is found not to be the beneficial 

owner of the dividend, USCo will not be entitled to the benefits of 

Article 10 with respect to such dividend. The payment may be entitled to benefits, however, if USCo is found to be a nominee, agent, 

custodian, or conduit for a person who is a resident of the United 

States. 

Beyond identifying the person to whom the principles of beneficial ownership shall be applied, the principles of paragraph 6 of 

Article 1 will also apply when determining whether other requirements, such as the ownership threshold of subparagraph 2(a) have 

been satisfied. 

For example, assume that HCo, a company that is a resident of 

Hungary, owns all of the outstanding shares in HDE, an entity 

that is disregarded for U.S. tax purposes that is a resident of Hungary. HDE owns 100% of the stock of USCo. Hungary views HDE 

as fiscally transparent under its domestic law, and taxes HCo currently on the income derived by HDE. In this case, HCo is treated 

as deriving the dividends paid by USCo under paragraph 6 of Article 1. Moreover, HCo is treated as owning the shares of USCo directly. The Convention does not address what constitutes direct 

ownership for purposes of Article 10. As a result, whether ownership is direct is determined under the internal law of the country 

imposing tax (i.e., the source country) unless the context otherwise 

requires. Accordingly, a company that holds stock through such an 

entity will generally be considered to directly own such stock for 

purposes of Article 10. 

The same principles would apply in determining whether companies holding shares through fiscally transparent entities such as 

partnerships, trusts, and estates would qualify for benefits. As a result, companies holding shares through such entities may be able 

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tionate share of the shares held by the intermediate entity meets 

the 10 percent threshold, and the company meets the requirements 

of subparagraph 6 of Article 1 (i.e., the company’s country of residence treats the intermediate entity as fiscally transparent) with 

respect to the dividend. Whether this ownership threshold is satisfied may be difficult to determine and often will require an analysis 

of the partnership or trust agreement. 

Paragraph 3 

Paragraph 3 provides that dividends beneficially owned by a pension fund may not be taxed in the Contracting State of which the 

company paying the tax is a resident, unless such dividends are derived from the carrying on of a business, directly or indirectly, by 

the pension fund or through an associated enterprise. For these 

purposes, the term ‘‘pension fund’’ is defined in subparagraph 1(k) 

of Article 3 (General Definitions). 

Paragraph 4 

Paragraph 4 imposes limitations on the rate reductions provided 

by paragraphs 2 and 3 in the case of dividends paid by RIC or a 

REIT. 

The first sentence of subparagraph 4(a) provides that dividends 

paid by a RIC or REIT are not eligible for the 5 percent rate of 

withholding tax of subparagraph 2(a). 

The second sentence of subparagraph 4(a) provides that the 15 

percent maximum rate of withholding tax of subparagraph 2(b) applies to dividends paid by RICs and that the elimination of sourcecountry withholding tax of paragraph 3 applies to dividends paid 

by RICs and beneficially owned by a pension fund. 

The third sentence of subparagraph 4(a) provides that the 15 

percent rate of withholding tax also applies to dividends paid by a 

REIT and that the elimination of source-country withholding tax of 

paragraph 3 applies to dividends paid by REITs and beneficially 

owned by a pension fund, provided that one of the three following 

conditions is met. First, the beneficial owner of the dividend is an 

individual or a pension fund, in either case holding an interest of 

not more than 10 percent in the REIT. Second, the dividend is paid 

with respect to a class of stock that is publicly traded and the beneficial owner of the dividend is a person holding an interest of not 

more than 5 percent of any class of the REIT’s shares. Third, the 

beneficial owner of the dividend holds an interest in the REIT of 

not more than 10 percent and the REIT is ‘‘diversified.’’ 

Subparagraph (b) provides a definition of the term ‘‘diversified.’’ 

A REIT is diversified if the gross value of no single interest in real 

property held by the REIT exceeds 10 percent of the gross value 

of the REIT’s total interest in real property. Foreclosure property 

is not considered an interest in real property, and a REIT holding 

a partnership interest is treated as owning its proportionate share 

of any interest in real property held by the partnership. Subparagraph (c) provides that the rules of paragraph 4 apply also to dividends paid by companies resident in Hungary that are similar to 

U.S. RICs and REITs. No such entities existed under Hungary’s domestic law at the time of signature of the Convention. 


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Paragraph 5 

Paragraph 5 defines the term dividends broadly and flexibly. The 

definition is intended to cover all arrangements that yield a return 

on an equity investment in a corporation as determined under the 

tax law of the state of source, as well as arrangements that might 

be developed in the future. 

The term includes income from shares, or other corporate rights 

that are not treated as debt under the law of the source State, that 

participate in the profits of the company. The term also includes 

income that is subjected to the same tax treatment as income from 

shares by the law of the State of source. Thus, a constructive dividend that results from a non-arm’s length transaction between a 

corporation and a related party is a dividend. In the case of the 

United States the term dividend includes amounts treated as a dividend under U.S. law upon the sale or redemption of shares or 

upon a transfer of shares in a reorganization. See, e.g., Rev. Rul. 

92-85, 1992-2 C.B. 69 (sale of foreign subsidiary’s stock to U.S. sister company is a deemed dividend to extent of the subsidiary’s and 

sister company’s earnings and profits). Further, a distribution from 

a U.S. publicly traded limited partnership, which is taxed as a corporation under U.S. law, is a dividend for purposes of Article 10. 

However, a distribution by a limited liability company is not taxable by the United States under Article 10, provided the limited liability company is not characterized as an association taxable as a 

corporation under U.S. law. 

Finally, a payment denominated as interest that is made by a 

thinly capitalized corporation may be treated as a dividend to the 

extent that the debt is recharacterized as equity under the laws of 

the source State. 

Paragraph 6 

Paragraph 6 provides a rule for taxing dividends paid with respect to holdings that form part of the business property of a permanent establishment. In such case, the rules of Article 7 (Business Profits) shall apply. Accordingly, the dividends will be taxed 

on a net basis using the rates and rules of taxation generally applicable to residents of the State in which the permanent establishment is located, as such rules may be modified by the Convention. 

An example of dividends paid with respect to the business property 

of a permanent establishment would be dividends derived by a 

dealer in stock or securities from stock or securities that the dealer 

held for sale to customers. 

Paragraph 7 

The right of a Contracting State to tax dividends paid by a company that is a resident of the other Contracting State is restricted 

by paragraph 7 to cases in which the dividends are paid to a resident of that Contracting State or are attributable to a permanent 

establishment or fixed base in that Contracting State. Thus, a Contracting State may not impose a ‘‘secondary’’ withholding tax on 

dividends paid by a nonresident company out of earnings and profits from that Contracting State. 

The paragraph also restricts the right of a Contracting State to 

impose corporate level taxes on undistributed profits, other than a 


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branch profits tax. The paragraph does not restrict a State’s right 

to tax its resident shareholders on undistributed earnings of a corporation resident in the other State. Thus, the authority of the 

United States to impose taxes on subpart F income and on earnings deemed invested in U.S. property, and its tax on income of a 

passive foreign investment company that is a qualified electing 

fund is in no way restricted by this provision. 

Paragraph 8 

Paragraph 8 permits a Contracting State to impose a branch 

profits tax on a company resident in the other Contracting State. 

The tax is in addition to other taxes permitted by the Convention. 

The term ‘‘company’’ is defined in subparagraph 1(b) of Article 3 

(General Definitions). 

A Contracting State may impose a branch profits tax on a company if the company has income attributable to a permanent establishment in that Contracting State, derives income from immovable 

property (real property) in that Contracting State that is taxed on 

a net basis under Article 6 (Income from Immovable Property (Real 

Property)), or realizes gains taxable in that State under paragraphs 

1 or 4 of Article 13 (Gains). In the case of the United States, the 

imposition of such tax is limited, however, to the portion of the 

aforementioned items of income that represents the amount of such 

income that is the ‘‘dividend equivalent amount.’’ This is consistent 

with the relevant rules under the U.S. branch profits tax, and the 

term dividend equivalent amount is defined under U.S. law. Section 884 defines the dividend equivalent amount as an amount for 

a particular year that is equivalent to the income described above 

that is included in the corporation’s effectively connected earnings 

and profits for that year, after payment of the corporate tax under 

Articles 6, 7 (Business Profits) or 13, reduced for any increase in 

the branch’s U.S. net equity during the year or increased for any 

reduction in its U.S. net equity during the year. U.S. net equity is 

U.S. assets less U.S. liabilities. See Treas. Reg. section 1.884-1. 

The dividend equivalent amount for any year approximates the 

dividend that a U.S. branch office would have paid during the year 

if the branch had been operated as a separate U.S. subsidiary company. At the time of signature of the Convention, Hungary did not 

impose a branch profits tax. If Hungary chooses to enact such a tax 

in the future, the base of its tax must be limited to an amount that 

is analogous to the dividend equivalent amount, and the applicable 

rate would be subject to the limitations of clause (ii) of subparagraph 8(b). 

As discussed in the Technical Explanations to Articles 1(2) and 

7(2), consistency principles prohibit a taxpayer from applying provisions of the Code and this Convention inconsistently. In the context 

of the branch profits tax, this consistency requirement means that 

if a Hungarian company uses the principles of Article 7 to determine its U.S. taxable income then it must also use those principles 

to determine its dividend equivalent amount. Similarly, if the Hungarian company instead uses the Code to determine its U.S. taxable income it must also use the Code to determine its dividend 

equivalent amount. As in the case of Article 7, if a Hungarian company, for example, does not from year to year consistently apply 


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the Code or the Convention to determine its dividend equivalent 

amount, then the Hungarian company must make appropriate adjustments or recapture amounts that would otherwise be subject to 

U.S. branch profits tax if it had consistently applied the Code or 

the Convention to determine its dividend equivalent amount from 

year to year. 

Subparagraph 2(b) provides that the branch profits tax shall not 

be imposed at a rate exceeding five percent. It is intended that subparagraph 2(b) apply equally if a taxpayer determines its taxable 

income under the laws of a Contracting State or under the provisions of Article 7. For example, as discussed above, consistency 

principles require a Hungarian company that determines its U.S. 

taxable income under the Code to also determine its dividend 

equivalent amount under the Code. In that case, subparagraph 2(b) 

would apply even though the Hungarian company did not determine its dividend equivalent amount using the principles of Article 

7. 

Relationship to Other Articles 

Notwithstanding the foregoing limitations on source country taxation of dividends, the saving clause of paragraph 4 of Article 1 

permits the United States to tax dividends received by its residents 

and citizens, subject to the special foreign tax credit rules of paragraph 4 of Article 23 (Relief from Double Taxation), as if the Convention had not come into effect. 

The benefits of this Article are also subject to the provisions of 

Article 22 (Limitation on Benefits). Thus, if a resident of the other 

Contracting State is the beneficial owner of dividends paid by a 

U.S. corporation, the shareholder must qualify for treaty benefits 

under at least one of the tests of Article 22 in order to receive the 

benefits of this Article. 

ARTICLE 11 (INTEREST)

Article 11 specifies the taxing jurisdictions over interest arising 

in one Contracting State and beneficially owned bya resident of the 

other Contracting State. 

Paragraph 1 

Paragraph 1 generally grants to the State of residence the exclusive right to tax interest beneficially owned by its residents and 

arising in the other Contracting State. 

The term ‘‘beneficial owner’’ is not defined in the Convention, 

and is, therefore, defined under the internal law of the State of 

source. The beneficial owner of the interest for purposes of Article 

11 is the person to which the income is attributable under the laws 

of the source State. Thus, if interest arising in a Contracting State 

is received by a nominee or agent that is a resident of the other 

State on behalf of a person that is not a resident of that other 

State, the interest is not entitled to the benefits of Article 11. However, interest received by a nominee on behalf of a resident of that 

other State would be entitled to benefits. These limitations are confirmed by paragraph 9 of the OECD Commentary to Article 11. 


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Paragraph 2 

Paragraph 2 provides anti-abuse exceptions to the source-country 

exemption in paragraph 1 for two classes of interest payments. 

The first class of interest, dealt with in subparagraphs 2(a) and 

2(b) is so-called ‘‘contingent interest.’’ With respect to Hungary, 

such interest is defined in subparagraph 2(a) as any interest arising in Hungary that is determined by reference to the receipts, 

sales, income, profits or other cash flow of the debtor or a related 

person, to any change in the value of any property of the debtor 

or a related person or to any dividend, partnership distribution or 

similar payment made by the debtor or a related person. Any such 

interest may be taxed in Hungary according to the laws of Hungary. If the beneficial owner is a resident of the United States, 

however, the gross amount of the interest may be taxed at a rate 

not exceeding 15 percent. With respect to interest arising in the 

United States, subparagraph (b) refers to contingent interest of a 

type that does not qualify as portfolio interest under U.S. domestic 

law. The cross-reference to the U.S. definition of contingent interest, which is found in section 871(h)(4) of the Code, is intended to 

ensure that the exceptions of section 871(h)(4)(C) will be applicable. 

The second class of interest is dealt with in subparagraph 2(c). 

This exception is consistent with the policy of Code sections 

860E(e) and 860G(b) that excess inclusions with respect to a real 

estate mortgage investment conduit (REMIC) should bear full U.S. 

tax in all cases. 

Paragraph 3 

The term ‘‘interest’’ as used in Article 11 is defined in paragraph 

3 to include, inter alia, income from debt claims of every kind, 

whether or not secured by a mortgage. Penalty charges for late 

payment are excluded from the definition of interest. Interest that 

is paid or accrued subject to a contingency is within the ambit of 

Article 11. This includes income from a debt obligation carrying the 

right to participate in profits. The term does not, however, include 

amounts that are treated as dividends under Article 10 (Dividends). 

The term interest also includes amounts subject to the same tax 

treatment as income from money lent under the law of the State 

in which the income arises. Thus, for purposes of the Convention, 

amounts that the United States will treat as interest include (i) the 

difference between the issue price and the stated redemption price 

at maturity of a debt instrument (i.e., original issue discount 

(’’OID’’)), which may be wholly or partially realized on the disposition of a debt instrument (section 1273), (ii) amounts that are imputed interest on a deferred sales contract (section 483), (iii) 

amounts treated as interest or OID under the stripped bond rules 

(section 1286), (iv) amounts treated as original issue discount 

under the below-market interest rate rules (section 7872), (v) a 

partner’s distributive share of a partnership’s interest income (section 702), (vi) the interest portion of periodic payments made under 

a ‘‘finance lease’’ or similar contractual arrangement that in substance is a borrowing by the nominal lessee to finance the acquisition of property, (vii) amounts included in the income of a holder 

of a residual interest in a REMIC (section 860E), because these 


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amounts generally are subject to the same taxation treatment as 

interest under U.S. tax law, and (viii) interest with respect to notional principal contracts that are re-characterized as loans because 

of a ‘‘substantial non-periodic payment.’’ 

Paragraph 4 

Paragraph 4 provides an exception to the exclusive residence taxation rule of paragraph 1 and the source-country gross taxation 

rule of paragraph 2 in cases where the beneficial owner of the interest carries on business through a permanent establishment in 

the State of source situated in that State and the interest is attributable to that permanent establishment. In such cases the provisions of Article 7 (Business Profits) will apply and the State of 

source will retain the right to impose tax on such interest income. 

In the case of a permanent establishment that once existed in 

the State of source but that no longer exists, the provisions of paragraph 4 also apply, by virtue of paragraph 7 of Article 7 (Business 

Profits), to interest that would be attributable to such a permanent 

establishment or fixed base if it did exist in the year of payment 

or accrual. See the Technical Explanation of paragraph 7 of Article 

7. 

Paragraph 5 

Paragraph 5 provides that in cases involving special relationships between the payor and the beneficial owner of interest income, Article 11 applies only to that portion of the total interest 

payments that would have been made absent such special relationships (i.e., an arm’s≥length interest payment). Any excess amount 

of interest paid remains taxable according to the laws of the United 

States and Hungary, respectively, with due regard to the other provisions of the Convention. Thus, if the excess amount would be 

treated under the source country’s law as a distribution of profits 

by a corporation, such amount could be taxed as a dividend rather 

than as interest, but the tax would be subject, if appropriate, to the 

rate limitations of paragraph 2 of Article 10 (Dividends). 

The term ‘‘special relationship’’ is not defined in the Convention. 

In applying this paragraph the United States considers the term to 

include the relationships described in Article 9, which in turn corresponds to the definition of ‘‘control’’ for purposes of section 482 

of the Code. 

This paragraph does not address cases where, owing to a special 

relationship between the payer and the beneficial owner or between 

both of them and some other person, the amount of the interest is 

less than an arm’s-length amount. In those cases a transaction may 

be characterized to reflect its substance and interest may be imputed consistent with the definition of interest in paragraph 3. The 

United States would apply section 482 or 7872 of the Code to determine the amount of imputed interest in those cases. 

Relationship to Other Articles 

Notwithstanding the foregoing limitations on source country taxation of interest, the saving clause of paragraph 4 of Article 1 permits the United States to tax its residents and citizens, subject to 

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lief from Double Taxation), as if the Convention had not come into 

force. 

As with other benefits of the Convention, the benefits of exclusive residence State taxation of interest under paragraph 1 of Article 11, or limited source taxation under subparagraphs 2(a) and 

2(b), are available to a resident of the other State only if that resident is entitled to those benefits under the provisions of Article 22 

(Limitation on Benefits). 

ARTICLE 12 (ROYALTIES)

Article 12 provides rules for the taxation of royalties arising in 

one Contracting State and paid to a beneficial owner that is a resident of the other Contracting State. 

Paragraph 1 

Paragraph 1 generally grants to the State of residence the exclusive right to tax royalties beneficially owned by its residents and 

arising in the other Contracting State. 

The term ‘‘beneficial owner’’ is not defined in the Convention, 

and is, therefore, defined under the internal law of the State of 

source. The beneficial owner of the royalty for purposes of Article 

12 is the person to which the income is attributable under the laws 

of the source State. Thus, if a royalty arising in a Contracting 

State is received by a nominee or agent that is a resident of the 

other State on behalf of a person that is not a resident of that other 

State, the royalty is not entitled to the benefits of Article 12. However, a royalty received by a nominee on behalf of a resident of that 

other State would be entitled to benefits. These limitations are confirmed by paragraph 4 of the OECD Commentary to Article 12. 

Paragraph 2 

Paragraph 2 defines the term ‘‘royalties,’’ as used in Article 12, 

to include any consideration for the use of, or the right to use, any 

copyright of literary, artistic, scientific or other work (such as cinematographic films), any patent, trademark, design or model, plan, 

secret formula or process, or for information concerning industrial, 

commercial, or scientific experience. The term ‘‘royalties’’ also includes gain derived from the alienation of any right or property 

that would give rise to royalties, to the extent the gain is contingent on the productivity, use, or further alienation thereof. Gains 

that are not so contingent are dealt with under Article 13 (Gains). 

The term ‘‘royalties,’’ however, does not include income from leasing personal property. 

The term royalties is defined in the Convention and therefore is 

generally independent of domestic law. Certain terms used in the 

definition are not defined in the Convention, but these may be defined under domestic tax law. For example, the term ‘‘secret process or formulas’’ is found in the Code, and its meaning has been 

elaborated in the context of sections 351 and 367. See Rev. Rul. 55- 

17, 1955-1 C.B. 388; Rev. Rul. 64-56, 1964-1 C.B. 133; Rev. Proc. 

69- 19, 1969-2 C.B. 301. 

Consideration for the use or right to use cinematographic films, 

or works on film, tape, or other means of reproduction in radio or 

television broadcasting is specifically included in the definition of 


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royalties. It is intended that, with respect to any subsequent technological advances in the field of radio or television broadcasting, 

consideration received for the use of such technology will also be 

included in the definition of royalties. 

If an artist who is resident in one Contracting State records a 

performance in the other Contracting State, retains a copyrighted 

interest in a recording, and receives payments for the right to use 

the recording based on the sale or public playing of the recording, 

then the right of such other Contracting State to tax those payments is governed by Article 12. See Boulez v. Commissioner, 83 

T.C. 584 (1984), aff’d, 810 F.2d 209 (D.C. Cir. 1986). By contrast, 

if the artist earns in the other Contracting State income covered 

by Article 16 (Entertainers and Sportsmen), for example, endorsement income from the artist’s attendance at a film screening, and 

if such income also is attributable to one of the rights described in 

Article 12 (e.g., the use of the artist’s photograph in promoting the 

screening), Article 16 and not Article 12 is applicable to such income. 

Computer software generally is protected by copyright laws 

around the world. Under the Convention, consideration received for 

the use, or the right to use, computer software is treated either as 

royalties or as business profits, depending on the facts and circumstances of the transaction giving rise to the payment. 

The primary factor in determining whether consideration received for the use, or the right to use, computer software is treated 

as royalties or as business profits is the nature of the rights transferred. See Treas. Reg. section 1.861-18. The fact that the transaction is characterized as a license for copyright law purposes is 

not dispositive. For example, a typical retail sale of ‘‘shrink wrap’’ 

software generally will not be considered to give rise to royalty income, even though for copyright law purposes it may be characterized as a license. 

The means by which the computer software is transferred are not 

relevant for purposes of the analysis. Consequently, if software is 

electronically transferred but the rights obtained by the transferee 

are substantially equivalent to rights in a program copy, the payment will be considered business profits. 

The term ‘‘industrial, commercial, or scientific experience’’ (sometimes referred to as ‘‘know-how’’). has the meaning ascribed to it 

in paragraph 11 et seq. of the Commentary to Article 12 of the 

OECD Model. Consistent with that meaning, the term may include 

information that is ancillary to a right otherwise giving rise to royalties, such as a patent or secret process. 

Know-how also may include, in limited cases, technical information that is conveyed through technical or consultancy services. It 

does not include general educational training of the user’s employees, nor does it include information developed especially for the 

user, such as a technical plan or design developed according to the 

user’s specifications. Thus, as provided in paragraph 11.3 of the 

Commentary to Article 12 of the OECD Model, the term ‘‘royalties’’ 

does not include payments received as consideration for after-sales 

service, for services rendered by a seller to a purchaser under a 

warranty, or for pure technical assistance. 


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The term ‘‘royalties’’ also does not include payments for professional services (such as architectural, engineering, legal, managerial, medical, software development services). For example, income 

from the design of a refinery by an engineer (even if the engineer 

employed know-how in the process of rendering the design) or the 

production of a legal brief by a lawyer is not income from the transfer of know-how taxable under Article 12, but is income from services taxable under either Article 7 (Business Profits) or Article 14 

(Income from Employment). Professional services may be embodied 

in property that gives rise to royalties, however. Thus, if a professional contracts to develop patentable property and retains rights 

in the resulting property under the development contract, subsequent license payments made for those rights would be royalties. 

Paragraph 3 

This paragraph provides an exception to the rule of paragraph 1 

that gives the state of residence exclusive taxing jurisdiction in 

cases where the beneficial owner of the royalties carries on business through a permanent establishment in the state of source and 

the royalties are attributable to that permanent establishment. In 

such cases the provisions of Article 7 (Business Profits) will apply. 

The provisions of paragraph 7 of Article 7 apply to this paragraph. For example, royalty income that is attributable to a permanent establishment and that accrues during the existence of the 

permanent establishment, but is received after the permanent establishment no longer exists, remains taxable under the provisions 

of Article 7, and not under this Article. 

Paragraph 4 

Paragraph 4 provides that in cases involving special relationships between the payor and beneficial owner of royalties, Article 

12 applies only to the extent the royalties would have been paid 

absent such special relationships (i.e., an arm’s-length royalty). 

Any excess amount of royalties paid remains taxable according to 

the laws of the two Contracting States, with due regard to the 

other provisions of the Convention. If, for example, the excess 

amount is treated as a distribution of corporate profits under domestic law, such excess amount will be taxed as a dividend rather 

than as royalties, but the tax imposed on the dividend payment 

will be subject to the rate limitations of paragraph 2 of Article 10 

(Dividends). 

Relationship to Other Articles 

Notwithstanding the foregoing limitations on source country taxation of royalties, the saving clause of paragraph 4 of Article 1 

(General Scope) permits the United States to tax its residents and 

citizens, subject to the special foreign tax credit rules of paragraph 

4 of Article 23 (Relief from Double Taxation), as if the Convention 

had not come into force. 

As with other benefits of the Convention, the benefits of exclusive residence State taxation of royalties under paragraph 1 of Article 12 are available to a resident of the other State only if that 

resident is entitled to those benefits under Article 22 (Limitation 

on Benefits). 


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ARTICLE 13 (GAINS)

Article 13 provides rules for the taxation of gains from the alienation of property. 

Paragraph 1 

Paragraph 1 of Article 13 preserves the non-exclusive right of the 

State of source to tax gains attributable to the alienation of real 

property situated in that State. The paragraph therefore permits 

the United States to apply section 897 of the Code to tax gains derived by a resident of Hungary that are attributable to the alienation of real property situated in the United States (as defined in 

paragraph 2). Gains attributable to the alienation of real property 

include gains from any other property that is treated as a real 

property interest within the meaning of paragraph 2. 

Paragraph 1 refers to gains ‘‘attributable to the alienation of immovable property (real property)’’ rather than the OECD Model 

phrase ‘‘gains from the alienation’’ to clarify that the United States 

will look through distributions made by a REIT and certain RICs. 

Accordingly, distributions made by a REIT or certain RICs are taxable under paragraph 1 of Article 13 (not under Article 10 (Dividends)) when they are attributable to gains derived from the alienation of real property. 

Paragraph 2 

This paragraph defines the term ‘‘immovable property (real property) situated in the other Contracting State’’ for purposes of the 

application of Article 13 by the United States. The term includes 

immovable property (real property) referred to in Article 6 (i.e., an 

interest in the real property itself), and a ‘‘United States real property interest’’ (when the United States is the other Contracting 

State under paragraph 1). 

Under section 897(c) of the Code, the term ‘‘United States real 

property interest’’ includes shares in a U.S. corporation that owns 

sufficient U.S. real property interests to satisfy an asset-ratio test 

on certain testing dates. The term also includes certain foreign corporations that have elected to be treated as U.S. corporations for 

this purpose. Section 897(i). 

Paragraph 3 

This paragraph defines the term ‘‘immovable property (real property) situated in the other Contracting State’’ for purposes of the 

application of Article 13 by Hungary. The term includes immovable 

property (real property) referred to in Article 6. 

Paragraph 4 

Paragraph 4 preserves the non-exclusive right for Hungary to tax 

gains from the alienation of shares or comparable interests deriving more than 50 percent of their value directly or indirectly from 

immovable property (real property) situated in Hungary. 

Paragraph 5 

. 


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Paragraph 5 of Article 13 deals with the taxation of certain gains 

from the alienation of movable property forming part of the business property of a permanent establishment that an enterprise of 

a Contracting State has in the other Contracting State. This also 

includes gains from the alienation of such a permanent establishment (alone or with the whole enterprise). Such gains may be taxed 

in the State in which the permanent establishment is located. 

Paragraph 5 does not, however, permit the United States to tax 

gains derived by an enterprise of Hungary from the sale of shares 

or comparable interests deriving more than 50 percent of their 

value directly or indirectly from immovable property (real property) 

situated in Hungary, even where those shares form a part of the 

business property of a permanent establishment maintained by 

that enterprise in the United States. The taxation of such shares 

is governed instead by paragraph 4. 

A resident of Hungary that is a partner in a partnership doing 

business in the United States generally will have a permanent establishment in the United States as a result of the activities of the 

partnership, assuming that the activities of the partnership rise to 

the level of a permanent establishment. Rev. Rul. 91-32, 1991-1 

C.B. 107. Further, under paragraph 5, the United States generally 

may tax a partner’s distributive share of income realized by a partnership on the disposition of movable property forming part of the 

business property of the partnership in the United States. 

The gains subject to paragraph 5 may be taxed in the State in 

which the permanent establishment is located, regardless of whether the permanent establishment exists at the time of the alienation. This rule incorporates the rule of section 864(c)(6) of the 

Code. Accordingly, income that is attributable to a permanent establishment, but that is deferred and received after the permanent 

establishment no longer exists, may nevertheless be taxed by the 

State in which the permanent establishment was located. 

Paragraph 6 

This paragraph limits the taxing jurisdiction of the State of 

source with respect to gains from the alienation of ships or aircraft 

operated in international traffic by the enterprise alienating the 

ships or aircraft and from movable property pertaining to the operation or use of such ships or aircraft. 

Under paragraph 6, such income is taxable only in the Contracting State in which the alienator is resident. Notwithstanding 

paragraph 5, the rules of this paragraph apply even if the income 

is attributable to a permanent establishment maintained by the enterprise in the other Contracting State. This result is consistent 

with the allocation of taxing rights under Article 8 (Shipping and 

Air Transport). 

Paragraph 7 

Paragraph 7 provides a rule similar to paragraph 6 with respect 

to gains from the alienation of containers and related personal 

property. Such gains derived by an enterprise of a Contracting 

State shall be taxable only in that Contracting State unless the 

containers were used for the transport of goods or merchandise 

solely within the other Contracting State. The other Contracting 


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State may not tax the gain even if it is attributable to a permanent 

establishment maintained by the enterprise in that other Contracting State. 

Paragraph 8 

Paragraph 8 grants to the State of residence of the alienator the 

exclusive right to tax gains from the alienation of property other 

than property referred to in paragraphs 1 through 7. For example, 

gain derived from shares, other than shares described in paragraphs 2, 4, or 5, debt instruments, and various financial instruments may be taxed only in the State of residence, to the extent 

such income is not otherwise characterized as income taxable 

under another article (e.g., Article 10 (Dividends) or Article 11 (Interest)). Similarly, gain derived from the alienation of tangible personal property, other than tangible personal property described in 

paragraph 5, may be taxed only in the State of residence of the 

alienator. 

Gain derived from the alienation of any property, such as a patent or copyright, that produces income covered by Article 12 (Royalties) is governed by the rules of Article 12 and not by this article, 

provided that such gain is of the type described in paragraph 2(b) 

of Article 12 (i.e., it is contingent on the productivity, use, or disposition of the property). 

Gains derived by a resident of a Contracting State from immovable property (real property) located in a third state are not taxable 

in the other Contracting State, even if the sale is attributable to 

a permanent establishment located in the other Contracting State. 

Paragraph 9 

Paragraph 9 addresses the situation in which a resident of one 

State ceases to be a resident of that State and, as a result, is subject to special tax rules. This rule is intended to coordinate United 

States and Hungarian taxation of gains in the case of a timing mismatch due to the application of the mark-to-market exit tax regime 

for ‘‘covered expatriates’’ under Code section 877A. Such a mismatch may occur, for example, where a U.S. resident recognizes, 

for 

U.S. tax purposes, gain on a deemed sale of all property on the 

day before the individual expatriates to Hungary. 

To avoid double taxation, paragraph 9 provides that where an individual who, upon ceasing to be a resident of one Contracting 

State, is treated for purposes of taxation by that State as having 

alienated a property and is taxed by that State by reason thereof, 

the individual may elect to be treated for the purposes of taxation 

by the other Contracting State as having sold and repurchased the 

property for its fair market value on the day before the expatriation date. The election in paragraph 9 therefore will be available 

to any individual who expatriates from the United States to Hungary. The election will have two effects. First, the election will result in the individual (while still a resident of the United States) 

triggering gain on any assets that Hungary is permitted to tax as 

the source State (e.g., an interest in Hungarian real property, or 

movable property forming part of the business property of a permanent establishment in Hungary). Second, regardless of whether 


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Hungarian tax is triggered by the deemed sale, the individual will 

be given an adjusted basis for Hungarian tax purposes equal to the 

fair market value of the property as of the date of the deemed 

alienation in the United States, with the result that if there is a 

subsequent alienation of the property while the individual is a resident of Hungary, only post-emigration gain will be subject to Hungarian tax. 

If an individual recognizes in one Contracting State losses and 

gains from the deemed alienation of multiple properties, then the 

individual must apply paragraph 9 consistently with respect to all 

such properties. An individual who is deemed to have alienated 

multiple properties may only make the election under paragraph 9 

if the deemed alienation of all such properties results in a net gain. 

Taxpayers may make the election provided by paragraph 9 only 

with respect to property that is treated as sold for its fair market 

value under a Contracting State’s deemed disposition rules. At the 

time the Convention was signed, the following were the types of 

property that were excluded from the deemed disposition rules in 

the case of individuals who cease to be citizens or long term residents of the United States: 1) a deferred compensation item as defined under Code section 877A(d)(4), 2) a specified tax deferred account as defined under Code section 877A(e)(2), and 3) an interest 

in a non-grantor trust as defined under Code section 877A(f)(3). 

Relationship to Other Articles 

Notwithstanding the foregoing limitations on taxation of certain 

gains by the State of source, the saving clause of paragraph 4 of 

Article 1 (General Scope) permits the United States to tax its citizens and residents as if the Convention had not come into effect. 

Thus, any limitation in this Article on the right of the United 

States to tax gains does not apply to gains of a 

U.S. citizen or resident. 

The benefits of this Article are also subject to the provisions of 

Article 22 (Limitation on Benefits). Thus, only a resident of a Contracting State that satisfies one of the conditions in Article 22 is 

entitled to the benefits of this Article. 

ARTICLE 14 (INCOME FROM EMPLOYMENT)

Article 14 apportions taxing jurisdiction over remuneration derived by a resident of a Contracting State as an employee between 

the States of source and residence. 

Paragraph 1 

The general rule of Article 14 is contained in paragraph 1. Remuneration derived by a resident of a Contracting State as an employee may be taxed by the State of residence, and the remuneration also may be taxed by the other Contracting State to the extent 

derived from employment exercised (i.e., services performed) in 

that other Contracting State. Paragraph 1 also provides that the 

more specific rules of Articles 15 (Directors’ Fees), 17 (Pensions and 

Income from Social Security), 18 (Government Service), 19 (Students and Trainees), and 20 (Professors and Teachers) apply in the 

case of employment income described in one of those articles. Thus, 


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even though the State of source has a right to tax employment income under Article 14, it may not have the right to tax that income 

under the Convention if the income is described, for example, in 

Article 17 and is not taxable in the State of source under the provisions of that Article. 

Article 14 applies to any form of compensation for employment, 

including payments in kind. Paragraph 1.1 of the Commentary to 

Article 16 of the OECD Model now confirms that interpretation. 

Consistent with section 864(c)(6) of the Code, Article 14 also applies regardless of the timing of actual payment for services. Consequently, a person who receives the right to a future payment in 

consideration for services rendered in a Contracting State would be 

taxable in that State even if the payment is received at a time 

when the recipient is a resident of the other Contracting State. 

Thus, a bonus paid to a resident of a Contracting State with respect to services performed in the other Contracting State with respect to a particular taxable year would be subject to Article 14 for 

that year even if it was paid after the close of the year. An annuity 

received for services performed in a taxable year could be subject 

to Article 14 despite the fact that it was paid in subsequent years. 

In that case, it would be necessary to determine whether the payment constitutes deferred compensation, taxable under Article 14, 

or a qualified pension subject to the rules of Article 17. Article 14 

also applies to income derived from the exercise of stock options 

granted with respect to services performed in the host State, even 

if those stock options are exercised after the employee has left the 

source country. If Article 14 is found to apply, whether such payments were taxable in the State where the employment was exercised would depend on whether the tests of paragraph 2 were satisfied in the year in which the services to which the payment relates 

were performed. 

Paragraph 2 

Paragraph 2 sets forth an exception to the general rule that employment income may be taxed in the State where it is exercised. 

Under paragraph 2, the State where the employment is exercised 

may not tax the income from the employment if three conditions 

are satisfied: (a) the individual is present in the other Contracting 

State for a period or periods not exceeding 183 days in any 12- 

month period that begins or ends during the relevant taxable year 

(i.e., in the United States, the calendar year in which the services 

are performed); (b) the remuneration is paid by, or on behalf of, an 

employer who is not a resident of that other Contracting State; and 

(c) the remuneration is not borne as a deductible expense by a permanent establishment that the employer has in that other State. 

In order for the remuneration to be exempt from tax in the source 

State, all three conditions must be satisfied. This exception is identical to that set forth in the OECD Model. 

The 183-day period in condition (a) is to be measured using the 

‘‘days of physical presence’’ method. Under this method, the days 

that are counted include any day in which a part of the day is 

spent in the host country. (Rev. Rul. 56-24, 1956-1 C.B. 851.) Thus, 

days that are counted include the days of arrival and departure; 

weekends and holidays on which the employee does not work but 


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is present within the country; vacation days spent in the country 

before, during or after the employment period, unless the individual’s presence before or after the employment can be shown to be 

independent of his presence there for employment purposes; and 

time during periods of sickness, training periods, strikes, etc., when 

the individual is present but not working. If illness prevented the 

individual from leaving the country in sufficient time to qualify for 

the benefit, those days will not count. Also, any part of a day spent 

in the host country while in transit between two points outside the 

host country is not counted. If the individual is a resident of the 

host country for part of the taxable year concerned and a nonresident for the remainder of the year, the individual’s days of 

presence as a resident do not count for purposes of determining 

whether the 183-day period is exceeded. 

Conditions (b) and (c) are intended to ensure that a Contracting 

State will not be required to allow a deduction to the payor for 

compensation paid and at the same time to exempt the employee 

on the amount received. Accordingly, if a foreign person pays the 

salary of an employee who is employed in the host State, but a host 

State corporation or permanent establishment reimburses the 

payor with a payment that can be identified as a reimbursement, 

neither condition (b) nor (c), as the case may be, will be considered 

to have been fulfilled. 

The reference to remuneration ‘‘borne by’’ a permanent establishment is understood to encompass all expenses that economically 

are incurred and not merely expenses that are currently deductible 

for tax purposes. Accordingly, the expenses referred to include expenses that are capitalizable as well as those that are currently deductible. Further, salaries paid by residents that are exempt from 

income taxation may be considered to be borne by a permanent establishment notwithstanding the fact that the expenses will be neither deductible nor capitalizable since the payor is exempt from 

tax. 

Paragraph 3 

Paragraph 3 contains a special rule applicable to remuneration 

for services performed by a resident of a Contracting State as an 

employee aboard a ship or aircraft operated in international traffic. 

Such remuneration may be taxed only in the State of residence of 

the employee if the services are performed as a member of the regular complement of the ship or aircraft. The ‘‘regular complement’’ 

includes the crew. In the case of a cruise ship, for example, it may 

also include others, such as entertainers, lecturers, etc., employed 

by the shipping company to serve on the ship throughout its voyage. The use of the term ‘‘regular complement’’ is intended to clarify that a person who exercises his employment as, for example, an 

insurance salesman while aboard a ship or aircraft is not covered 

by this paragraph. 

If a U.S. citizen who is resident in Hungary performs services as 

an employee in the United States and meets the conditions of paragraph 2 for source country exemption, he nevertheless is taxable in 

the United States by virtue of the saving clause of paragraph 4 of 

Article 1 (General Scope), subject to the special foreign tax credit 

rule of paragraph 4 of Article 23 (Relief from Double Taxation). 


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ARTICLE 15 (DIRECTORS’ FEES)

This Article provides that a Contracting State may tax the fees 

and other compensation paid by a company that is a resident of 

that State for services performed by a resident of the other Contracting State in his capacity as a director of the company. This 

rule is an exception to the more general rules of Articles 7 (Business Profits) and 14 (Income from Employment). Thus, for example, 

in determining whether a director’s fee paid to a non-employee director is subject to tax in the country of residence of the corporation, it is not relevant to establish whether the fee is attributable 

to a permanent establishment in that State. 

ARTICLE 16 (ENTERTAINERS AND SPORTSMEN)

This Article deals with the taxation in a Contracting State of entertainers and sportsmen resident in the other Contracting State 

from the performance of their services as such. The Article applies 

both to the income of an entertainer or sportsman who performs 

services on his own behalf and one who performs services on behalf 

of another person, either as an employee of that person, or pursuant to any other arrangement. The rules of this Article take precedence, in some circumstances, over those of Articles 7 (Business 

Profits) and 14 (Income from Employment). 

This Article applies only with respect to the income of entertainers and sportsmen. Others involved in a performance or athletic event, such as producers, directors, technicians, managers, 

coaches, etc., remain subject to the provisions of Articles 7 and 14. 

In addition, except as provided in paragraph 2, income earned by 

juridical persons is not covered by Article 16. 

Paragraph 1 

Paragraph 1 describes the circumstances in which a Contracting 

State may tax the performance income of an entertainer or sportsman who is a resident of the other Contracting State. Under the 

paragraph, income derived by an individual resident of a Contracting State from activities as an entertainer or sportsman exercised in the other Contracting State may be taxed in that other 

State if the amount of the gross receipts derived by the performer 

exceeds $20,000 (or its equivalent in Hungarian Forints) for the 

taxable year. The $20,000 includes expenses reimbursed to the individual or borne on his behalf. If the gross receipts exceed 

$20,000, the full amount, not just the excess, may be taxed in the 

State of performance. 

The Convention introduces this monetary threshold to distinguish between two groups of entertainers and athletes—those who 

are paid relatively large sums of money for very short periods of 

service, and who would, therefore, normally be exempt from host 

country tax under the standard personal services income rules, and 

those who earn relatively modest amounts and are, therefore, not 

easily distinguishable from those who earn other types of personal 

service income. 

Tax may be imposed under paragraph 1 even if the performer 

would have been exempt from tax under Article 7 (Business Profits) or 14 (Income from Employment). On the other hand, if the 


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performer would be exempt from host-country tax under Article 16, 

but would be taxable under either Article 7 or 14, tax may be imposed under either of those Articles. Thus, for example, if a performer derives remuneration from his activities in an independent 

capacity, and the performer does not have a permanent establishment in the host State, he may be taxed by the host State in accordance with Article 16 if his remuneration exceeds $20,000 annually, despite the fact that he generally would be exempt from host 

State taxation under Article 7. However, a performer who receives 

less than the $20,000 threshold amount and therefore is not taxable under Article 16 nevertheless may be subject to tax in the host 

country under Article 7 or 14 if the tests for host-country taxability 

under the relevant Article are met. For example, if an entertainer 

who is an independent contractor earns $14,000 of income in a 

State for the calendar year, but the income is attributable to his 

permanent establishment in the State of performance, that State 

may tax his income under Article 7. 

Since it frequently is not possible to know until year-end whether 

the income an entertainer or sportsman derived from performances 

in a Contracting State will exceed $20,000, nothing in the Convention precludes that Contracting State from withholding tax during 

the year and refunding it after the close of the year if the taxability 

threshold has not been met. 

As explained in paragraph 9 of the Commentary to Article 17 of 

the OECD Model, Article 16 of the Convention applies to all income 

connected with a performance by the entertainer, such as appearance fees, award or prize money, and a share of the gate receipts. 

Income derived from a Contracting State by a performer who is a 

resident of the other Contracting State from other than actual performance, such as royalties from record sales and payments for 

product endorsements, is not covered by this Article, but by other 

articles of the Convention, such as Article 12 (Royalties) or Article 

7. For example, if an entertainer receives royalty income from the 

sale of live recordings, the royalty income would be exempt from 

source state tax under Article 12, even if the performance was conducted in the source country, although the entertainer could be 

taxed in the source country with respect to income from the performance itself under Article 16 if the dollar threshold is exceeded. 

In determining whether income falls under Article 16 or another 

Article, the controlling factor will be whether the income in question is predominantly attributable to the performance itself or to 

other activities or property rights. For instance, a fee paid to a performer for endorsement of a performance in which the performer 

will participate would be considered to be so closely associated with 

the performance itself that it normally would fall within Article 16. 

Similarly, a sponsorship fee paid by a business in return for the 

right to attach its name to the performance would be so closely associated with the performance that it would fall under Article 16 

as well. As indicated in paragraph 9 of the Commentary to Article 

17 of the OECD Model, however, a cancellation fee would not be 

considered to fall within Article 16 but would be dealt with under 

Article 7 or 14. 

As indicated in paragraph 4 of the Commentary to Article 17 of 

the OECD Model, where an individual fulfills a dual role as perVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00056 Fmt 6601 Sfmt 6601 E:\HR\OC\ER007.XXX ER007

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former and non-performer (such as a player-coach or an actor-director), but his role in one of the two capacities is negligible, the predominant character of the individual’s activities should control the 

characterization of those activities. In other cases there should be 

an apportionment between the performance-related compensation 

and other compensation. 

Consistent with Article 14, Article 16 also applies regardless of 

the timing of actual payment for services. Thus, a bonus paid to 

a resident of a Contracting State with respect to a performance in 

the other Contracting State during a particular taxable year would 

be subject to Article 16 for that year even if it was paid after the 

close of the year. The determination as to whether the $20,000 

threshold has been exceeded is determined separately with respect 

to each year of payment. Accordingly, if an actor who is a resident 

of one Contracting State receives residual payments over time with 

respect to a movie that was filmed in the other Contracting State, 

the payments do not have to be aggregated from one year to another to determine whether the total payments have finally exceeded $20,000. Otherwise, residual payments received many years 

later could retroactively subject all earlier payments to tax by the 

other Contracting State. 

Paragraph 2 

Paragraph 2 is intended to address the potential for circumvention of the rule in paragraph 1 when a performer’s income does not 

accrue directly to the performer himself, but to another person. 

Foreign performers frequently perform in the United States as employees of, or under contract with, a company or other person. 

The relationship may truly be one of employee and employer, 

with no circumvention of paragraph 1 either intended or realized. 

On the other hand, the ‘‘employer’’ may, for example, be a company 

established and owned by the performer, which is merely acting as 

the nominal income recipient in respect of the remuneration for the 

performance (a ‘‘star company’’). The performer may act as an ‘‘employee,’’ receive a modest salary, and arrange to receive the remainder of the income from his performance from the company in 

another form or at a later time. In such case, absent the provisions 

of paragraph 2, the income arguably could escape host-country tax 

because the company earns business profits but has no permanent 

establishment in that country. The performer may largely or entirely escape host-country tax by receiving only a small salary, perhaps small enough to place him below the dollar threshold in paragraph 1. The performer might arrange to receive further payments 

in a later year, when he is not subject to host-country tax, perhaps 

as dividends or liquidating distributions. 

Paragraph 2 seeks to prevent this type of abuse while at the 

same time protecting the taxpayers’ rights to the benefits of the 

Convention when there is a legitimate employee-employer relationship between the performer and the person providing his services. 

Under paragraph 2, when the income accrues to a person other 

than the performer, the income may be taxed in the Contracting 

State where the performer’s services are exercised, without regard 

to the provisions of the Convention concerning business profits (Article 7) or income from employment (Article 14), unless the contract 


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pursuant to which the personal activities are performed allows the 

person other than the performer to designate the individual who is 

to perform the personal activities. This rule is based on the U.S. 

domestic law provision characterizing income from certain personal 

service contracts as foreign personal holding company income in 

the context of the foreign personal holding company provisions. See 

Code section 954(c)(1)(H). The premise of this rule is that, in a case 

where a performer is using another person in an attempt to circumvent the provisions of paragraph 1, the recipient of the services 

of the performer would contract with a person other than that performer (i.e., a company employing the performer) only if the recipient of the services were certain that the performer himself would 

perform the services. If instead the person is allowed to designate 

the individual who is to perform the services, then likely the person is a service company not formed to circumvent the provisions 

of paragraph 1. The following example illustrates the operation of 

this rule: 

Example. Company H, a resident of Hungary, is engaged in the 

business of operating an orchestra. Company H enters into a contract with Company A pursuant to which Company H agrees to 

carry out two performances in the United States in consideration 

of which Company A will pay Company H $200,000. The contract 

designates two individuals, a conductor and a flautist, that must 

perform as part of the orchestra, and allows Company H to designate the other members of the orchestra. Because the contract 

does not give Company H any discretion to determine whether the 

conductor or the flautist perform personal services under the contract, the portion of the $200,000 which is attributable to the personal services of the conductor and the flautist may be taxed by the 

United States pursuant to paragraph 2. The remaining portion of 

the $200,000, which is attributable to the personal services of performers that Company H may designate, is not subject to tax by 

the United States pursuant to paragraph 2. 

In cases where paragraph 2 is applicable, the income of the ‘‘employer’’ may be subject to tax in the host Contracting State even 

if it has no permanent establishment in the host country. Taxation 

under paragraph 2 is on the person providing the services of the 

performer. This paragraph does not affect the rules of paragraph 

1, which apply to the performer himself. The income taxable by virtue of paragraph 2 is reduced to the extent of salary payments to 

the performer, which fall under paragraph 1. 

For purposes of paragraph 2, income is deemed to accrue to another person (i.e., the person providing the services of the performer) if that other person has control over, or the right to receive, 

gross income in respect of the services of the performer. 

Pursuant to Article 1 (General Scope), the Convention only applies to persons who are residents of one of the Contracting States. 

Thus, income of a star company that is not a resident of either 

Contracting State would not be eligible for the benefits of the Convention. 

Relationship to other Articles 

This Article is subject to the provisions of the saving clause of 

paragraph 4 of Article 1 (General Scope). Thus, if an entertainer 


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or a sportsman who is resident in Hungary is a citizen of the 

United States, the United States may tax all of his income from 

performances in the United States without regard to the provisions 

of this Article (subject to the special foreign tax credit provisions 

of paragraph 4 of Article 23 (Relief from Double Taxation)). In addition, benefits of this Article are subject to the provisions of Article 22 (Limitation on Benefits). 

ARTICLE 17 (PENSIONS AND INCOME FROM SOCIAL SECURITY)

This Article deals with the taxation of private (i.e., non-government service) pensions and social security benefits,. 

Paragraph 1 

Paragraph 1 provides that distributions from pensions and other 

similar remuneration beneficially owned by a resident of a Contracting State in consideration of past employment are taxable only 

in the State of residence of the beneficiary. The term ‘‘pensions and 

other similar remuneration’’ includes both periodic and single sum 

payments. 

The phrase ‘‘pensions and other similar remuneration’’ is intended to encompass payments made by qualified private retirement plans. In the United States, the plans encompassed by Paragraph 1 include: qualified plans under section 401(a), individual retirement plans (including individual retirement plans that are part 

of a simplified employee pension plan that satisfies section 408(k), 

individual retirement accounts and section 408(p) accounts), section 

403(a) qualified annuity plans, and section 403(b) plans. Distributions from section 457 plans may also fall under Paragraph 1 if 

they are not paid with respect to government services covered by 

Article 19. The competent authorities may agree that distributions 

from other plans that generally meet similar criteria to those applicable to the listed plans also qualify for the benefits of Paragraph 

1. 

Pensions in respect of government services covered by Article 18 

are not covered by this paragraph. They are covered either by paragraph 2 of this Article, if they are in the form of social security 

benefits, or by paragraph 2 of Article 18 (Government Service). 

Thus, Article 18 generally covers section 457, 401(a), 403(b) plans 

established for government employees, and the Thrift Savings Plan 

(section 7701(j)). 

Subparagraph 1(b) contains an exception to the State of residence’s right to tax pensions and other similar remuneration under 

subparagraph 1(a). Under subparagraph 1(b), the State of residence must exempt from tax the amount of any such pensions or 

other similar remuneration that would be exempt from tax in the 

Contracting State in which the pension fund is established if the 

recipient were a resident of that State. Thus, for example, a distribution from a U.S. ‘‘Roth IRA’’ to a resident of Hungary would 

be exempt from tax in Hungary to the same extent the distribution 

would be exempt from tax in the United States if it were distributed to a U.S. resident. The same is true with respect to distributions from a traditional IRA to the extent that the distribution represents a return of non-deductible contributions. Similarly, if the 

distribution were not subject to tax when it was ‘‘rolled over’’ into 


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another U.S. IRA (but not, for example, to a pension fund in the 

other Contracting State), then the distribution would be exempt 

from tax in Hungary. 

Paragraph 2 

The treatment of social security benefits is dealt with in paragraph 2. Subparagraph 2(a) provides that, notwithstanding the provision of paragraph 1 under which private pensions are taxable exclusively in the State of residence of the beneficial owner, payments made by the United States under the provisions of the social 

security or similar legislation of the United States to a resident of 

Hungary will be taxable only in the United States. Subparagraph 

2(b) provides that payments made by Hungary under the mandatory pension scheme of Hungary to a resident or citizen of the 

United States are taxable only in Hungary. The reference to U.S. 

citizens is necessary to ensure that a social security payment by 

Hungary to a U.S. citizen who is not resident in the United States 

will not be taxable by the United States. 

This paragraph applies to social security and mandatory pension 

scheme beneficiaries whether they have contributed to the system 

as private sector or Government employees. The phrase ‘‘similar 

legislation’’ is intended to refer to United States tier 1 railroad retirement benefits. 

Paragraph 3 

Paragraph 3 provides that, if a resident of a Contracting State 

participates in a pension fund established in the other Contracting 

State, the State of residence will not tax the income of the pension 

fund with respect to that resident until a distribution is made from 

the pension fund. Thus, for example, if a U.S. citizen contributes 

to a U.S. qualified plan while working in the United States and 

then establishes residence in the Hungary, paragraph 3 prevents 

Hungary from taxing currently the plan’s earnings and accretions 

with respect to that individual. When the resident receives a distribution from the pension fund, that distribution may be subject 

to tax in the State of residence, subject to paragraph 1. 

Relationship to other Articles 

Subparagraph 1(a) of Article 17 is subject to the saving clause of 

paragraph 4 of Article 1 (General Scope). Thus, a U.S. citizen who 

is resident in Hungary and receives a pension payment from the 

United States, may be subject to U.S. tax on the payment, notwithstanding the rules in subparagraph 1(a) that give the State of residence of the recipient the exclusive taxing right. Subparagraph 1(b) 

and paragraphs 2 and 3 are excepted from the saving clause by virtue of subparagraph 5(a) of Article 1. Thus, the United States will 

not tax U.S. citizens and residents on the income described in those 

paragraphs even if such amounts otherwise would be subject to tax 

under U.S. law. 


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ARTICLE 18 (GOVERNMENT SERVICE)

Paragraph 1 

Subparagraphs 1(a) and 1(b) deal with the taxation of government compensation (other than a pension addressed in paragraph 

2). Subparagraph 1(a) provides that remuneration paid by a Contracting State or a political subdivision or local authority thereof to 

any individual who is rendering services to that State, political 

subdivision or local authority is exempt from tax by the other 

State. Under subparagraph (b), such payments are, however, taxable exclusively in the other State (i.e., the host State) if the services are rendered in that other State and the individual is a resident of that State who is either a national of that State or a person 

who did not become resident of that State solely for purposes of 

rendering the services. 

Paragraph 2 

Paragraph 2 deals with the taxation of pensions paid by, or out 

of funds created by, one of the States, or a political subdivision or 

a local authority thereof, to an individual in respect of services rendered to that State or subdivision or authority. Subparagraph (a) 

provides that such pensions are taxable only in that State. Subparagraph (b) provides an exception under which such pensions are 

taxable only in the other State if the individual is a resident of, 

and a national of, that other State. 

Pensions paid to retired civilian and military employees of a Government of either State are intended to be covered under paragraph 2. When benefits paid by a State in respect of services rendered to that State or a subdivision or authority are in the form 

of social security benefits, however, those payments are covered by 

paragraph 2 of Article 17 (Pensions and Income From Social Security). As a general matter, the result will be the same whether Article 17 or 18 applies, since social security benefits are taxable exclusively by the source country and so are government pensions. 

The result will differ only when the payment is made to a citizen 

and resident of the other Contracting State, who is not also a citizen of the paying State. In such a case, social security benefits 

continue to be taxable at source while government pensions become 

taxable only in the residence country. 

Paragraph 3 

Paragraph 3 provides that the remuneration described in paragraph 1 will be subject to the rules of Articles 14 (Income from Employment), 15 (Directors’ Fees), 16 (Entertainers and Sportsmen) or 

17 (Pensions and Income From Social Security) if the recipient of 

the income is employed by a business conducted by a government. 

Relationship to other Articles 

Under subparagraph 5(b) of Article 1 (General Scope), the saving 

clause of paragraph 4 of Article 1 does not apply to the benefits 

conferred by one of the States under Article 18 if the recipient of 

the benefits is neither a citizen of that State, nor a person who has 

been admitted for permanent residence there (i.e., in the United 

States, a ‘‘green card’’ holder). Thus, a resident of the United 


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States who in the course of performing functions of a governmental 

nature becomes a resident of Hungary (but not a permanent resident), would be entitled to the benefits of this Article. Similarly, an 

individual who receives a pension paid by the Government of Hungary in respect of services rendered to the Government of Hungary 

shall be taxable on this pension only in Hungary unless the individual is a U.S. citizen or acquires a U.S. green card. 

ARTICLE 19 (STUDENTS AND TRAINEES)

This Article provides rules for the taxation of visiting students 

and business trainees. Persons who meet the tests of the Article 

will be exempt from tax in the State that they are visiting with respect to designated classes of income. Several conditions must be 

satisfied in order for an individual to be entitled to the benefits of 

this Article. 

First, the visitor must have been, either at the time of his arrival 

in the host State or immediately before, a resident of the other 

Contracting State. 

Second, the primary purpose of the visit must be the education 

or training of the visitor. Thus, if the visitor comes principally to 

work in the host State but also is a part-time student, he would 

not be entitled to the benefits of this Article, even with respect to 

any payments he may receive from abroad for his maintenance or 

education, and regardless of whether or not he is in a degree program. 

The host-country exemption applies to payments received by the 

student or business trainee for the purpose of his maintenance, 

education or training that arise outside the host State. 

A payment will be considered to arise outside the host State if 

the payer is located outside the host State. Thus, if an employer 

from one of the Contracting States sends an employee to the other 

Contracting State for training, the payments the trainee receives 

from abroad from his employer for his maintenance or training 

while he is present in the host State will be exempt from tax in 

the host State. Where appropriate, substance prevails over form in 

determining the identity of the payer. Thus, for example, payments 

made directly or indirectly by a U.S. person with whom the visitor 

is training, but which have been routed through a source outside 

the United States (e.g., a foreign subsidiary), are not treated as 

arising outside the United States for this purpose. 

The Article also provides a limited exemption for remuneration 

from personal services rendered in the host State with a view to 

supplementing the resources available to him for such purposes to 

the extent of $9,000 United States dollars (or its equivalent in 

Hungarian Forints) per taxable year. The specified amount is intended to equalize the position of a U.S. resident who is entitled 

to the standard deduction and the personal exemption with that of 

a student who files as a non-resident alien and therefore is not. Accordingly, the competent authorities are instructed to adjust this 

amount every five years, if necessary, to take into account changes 

in the amount of the U.S. standard deduction and personal exemption. 

In the case of a business trainee, the benefits of the Article will 

extend only for a period of one year from the time that the visitor 


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first arrives in the host country. If, however, a trainee remains in 

the host country for a second year, thus losing the benefits of the 

Article, he would not retroactively lose the benefits of the Article 

for the first year. The term ‘‘business trainee’’ is defined as a person who is in the country temporarily for the purpose of securing 

training that is necessary to qualify to pursue a profession or professional specialty. Moreover, the person must be employed or 

under contract with a resident of the other Contracting State and 

must be receiving the training from someone who is not related to 

its employer. Thus, a business trainee might include a lawyer employed by a law firm in one Contracting State who works for one 

year as a stagiaire in an unrelated law firm in the other Contracting State. However, the term would not include a manager 

who normally is employed by a parent company in one Contracting 

State who is sent to the other Contracting State to run a factory 

owned by a subsidiary of the parent company. 

Relationship to other Articles 

Under subparagraph 5(b) of Article 1, the saving clause of paragraph 4 of Article 1 (General Scope) does not apply to this Article 

with respect to an individual who is neither a citizen of the host 

State nor has been admitted for permanent residence there. The 

saving clause, however, does apply with respect to citizens and permanent residents of the host State. Thus, a citizen who is a resident of Hungary and who visits the United States for the primary 

purpose of attending an accredited university will not be exempt 

from U.S. tax on remittances from abroad that otherwise constitute 

U.S. taxable income. A person, however, who is not a citizen, and 

who visits the United States as a student and remains long enough 

to become a resident under U.S. law, but does not become a permanent resident (i.e., does not acquire a green card), will be entitled 

to the full benefits of the Article. 

ARTICLE 20 (PROFESSORS AND TEACHERS)

Paragraph 1 

Paragraph 1 provides an exemption from tax in a host Contracting State for an individual who visits that State for a period 

not exceeding two years for the purpose of teaching or carrying out 

advanced study (including research) at a university, college or 

other recognized research institute or other establishment for higher education in that State. This rule applies only if the individual 

is a resident of the other Contracting State immediately before his 

visit begins. The exemption applies to any remuneration for such 

teaching or research. The exemption from tax applies for a period 

not exceeding two years from the date he first visits the host State 

for the purpose of teaching or engaging in research at a university, 

college or other recognized research institute or other establishment for higher education there. If a professor or teacher remains 

in the host State for more than the specified two year period, he 

may be subject to tax in that State, under its law, for the entire 

period of his presence. 


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The host State exemption will apply if the teaching or research 

is carried on at an accredited university, college, school or other 

recognized educational institution. 

Paragraph 2 

Paragraph 2 provides that the preceding provisions of the Article 

shall apply to income from research only if such research is undertaken by the individual in the public interest and not primarily for 

the benefit of a specific person or persons. 

Under subparagraph 5(b) of Article 1 (General Scope), the saving 

clause of paragraph 4 of Article 1 does not apply to the benefits 

conferred by one of the States under this Article if the recipient of 

the benefits is neither a citizen nor a lawful permanent resident of 

that State. Thus, a resident of Hungary who visits the United 

States for two academic years as a professor and becomes a U.S. 

resident according to the Code, other than by virtue of acquiring 

a green card, would continue to be exempt from U.S. tax in accordance with this article so long as he is not a U.S. citizen and does 

not acquire immigrant status in the United States. 

ARTICLE 21 (OTHER INCOME)

Article 21 generally assigns taxing jurisdiction over income not 

dealt with in the other Articles (Articles 6 through 20) of the Convention to the State of residence of the beneficial owner of the income. In order for an item of income to be ‘‘dealt with’’ in another 

Article it must be the type of income described in the article and, 

in most cases, it must have its source in a Contracting State. For 

example, all royalty income that arises in a Contracting State and 

that is beneficially owned by a resident of the other Contracting 

State is ‘‘dealt with’’ in Article 12 (Royalties). However, profits derived in the conduct of a business are ‘‘dealt with’’ in Article 7 

(Business Profits) whether or not they have their source in one of 

the Contracting States. 

Examples of items of income covered by Article 21 include income 

from gambling, punitive (but not compensatory) damages and covenants not to compete. The Article would also apply to income from 

a variety of financial transactions, where such income does not 

arise in the course of the conduct of a trade or business. For example, income from notional principal contracts and other derivatives 

would fall within Article 21 if derived by persons not engaged in 

the trade or business of dealing in such instruments, unless such 

instruments were being used to hedge risks arising in a trade or 

business. It would also apply to securities lending fees derived by 

an institutional investor. Further, in most cases guarantee fees 

paid within an intercompany group would be covered by Article 21, 

unless the guarantor were engaged in the business of providing 

such guarantees to unrelated parties. 

Article 21 also applies to items of income that are not dealt with 

in the other Articles because of their source or some other characteristic. For example, Article 11 (Interest) addresses only the taxation of interest arising in a Contracting State. Interest arising in 

a third State that is not attributable to a permanent establishment, therefore, is subject to Article 21. 


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Distributions from partnerships are not generally dealt with 

under Article 21 because partnership distributions generally do not 

constitute income. Under the Code, partners include in income 

their distributive share of partnership income annually, and partnership distributions themselves generally do not give rise to income. This would also be the case under U.S. law with respect to 

distributions from trusts. Trust income and distributions that, 

under the Code, have the character of the associated distributable 

net income would generally be covered by another article of the 

Convention. See Code section 641 et seq. 

Paragraph 1 

The general rule of Article 21 is contained in paragraph 1. Items 

of income not dealt with in other Articles and beneficially owned 

by a resident of a Contracting State will be taxable only in the 

State of residence. This exclusive right of taxation applies whether 

or not the residence State exercises its right to tax the income covered by the Article. 

The reference in this paragraph to ‘‘items of income beneficially 

owned by a resident of a Contracting State’’ rather than simply 

‘‘items of income of a resident of a Contracting State,’’ as in the 

OECD Model, is intended merely to make explicit the implicit understanding in other treaties that the exclusive residence taxation 

provided by paragraph 1 applies only when a resident of a Contracting State is the beneficial owner of the income. Thus, source 

taxation of income not dealt with in other articles of the Convention is not limited by paragraph 1 if it is nominally paid to a resident of the other Contracting State, but is beneficially owned by a 

resident of a third State. However, income received by a nominee 

on behalf of a resident of that other State would be entitled to benefits. 

The term ‘‘beneficially owned’’ is not defined in the Convention, 

and is, therefore, defined as under the internal law of the country 

imposing tax (i.e., the source country). The person who beneficially 

owns the income for purposes of Article 21 is the person to which 

the income is attributable for tax purposes under the laws of the 

source State. 

Paragraph 2 

This paragraph provides an exception to the general rule of paragraph 1 where the right or property in respect of which the income 

is paid is effectively connected with a permanent establishment 

maintained in a Contracting State by a resident of the other Contracting State. The taxation of such income is governed by the provisions of Article 7 (Business Profits). Therefore, income arising 

outside the United States that is attributable to a permanent establishment maintained in the United States by a resident of Hungary generally would be taxable by the United States under the 

provisions of Article 7. This would be true even if the income is 

sourced in a third State. 

Relationship to Other Articles 

This Article is subject to the saving clause of paragraph 4 of Article 1 (General Scope). Thus, the United States may tax the income 


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of a resident of the other Contracting State that is not dealt with 

elsewhere in the Convention, if that resident is a citizen of the 

United States. The Article is also subject to the provisions of Article 22 (Limitation on Benefits). Thus, if a resident of the other Contracting State earns income that falls within the scope of paragraph 1 of Article 21, but that is taxable by the United States 

under U.S. law, the income would be exempt from 

U.S. tax under the provisions of Article 21 only if the resident 

satisfies one of the tests of Article 22 for entitlement to benefits. 

ARTICLE 22 (LIMITATION ON BENEFITS)

Article 22 contains anti-treaty-shopping provisions that are intended to prevent residents of third countries from benefiting from 

what is intended to be a reciprocal agreement between two countries. In general, the provision does not rely on a determination of 

purpose or intention but instead sets forth a series of objective 

tests. A resident of a Contracting State that satisfies one of the 

tests will receive benefits regardless of its motivations in choosing 

its particular business structure. 

The structure of the Article is as follows: Paragraph 1 states the 

general rule that residents are entitled to benefits otherwise accorded to residents only to the extent provided in the Article. Paragraph 2 lists a series of attributes of a resident of a Contracting 

State, the presence of any one of which will entitle that person to 

all the benefits of the Convention. Paragraph 3 provides that, regardless of whether a person qualifies for benefits under paragraph 

2, benefits may be granted to that person with regard to certain income earned in the conduct of an active trade or business. Paragraph 4 provides a so-called ‘‘derivative benefits’’ test under which 

certain income may qualify for benefits. Paragraph 5 provides that 

a so-called headquarters company resident in a Contracting State 

may qualify for benefits if certain conditions are met. Paragraph 6 

provides special rules for so-called ‘‘triangular cases,’’ notwithstanding the other provisions of the Article. Paragraph 7 provides 

that benefits also may be granted if the competent authority of the 

State from which benefits are claimed determines that it is appropriate to provide benefits in that case. Paragraph 8 defines certain 

terms used in the Article. 

Paragraph 1 

Paragraph 1 provides that, except as otherwise provided in Article 22, a resident of a Contracting State will be entitled to all the 

benefits otherwise accorded to residents of a Contracting State 

under the Convention only to the extent provided in paragraph 2. 

The benefits otherwise accorded to residents under the Convention include all limitations on source-based taxation under Articles 

6 through 21, the treaty-based relief from double taxation provided 

by Article 23, and the protection afforded to residents of a Contracting State under Article 24. Some provisions do not require 

that a person be a resident in order to enjoy the benefits of those 

provisions. Article 25 is not limited to residents of the Contracting 

States, and Article 27 applies to diplomatic agents or consular officials regardless of residence. Article 22 accordingly does not limit 

the availability of treaty benefits under these provisions. 


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Article 22 and the anti-abuse provisions of domestic law complement each other, as Article 22 effectively determines whether an 

entity has a sufficient nexus to the Contracting State to be treated 

as a resident for treaty purposes, while domestic anti-abuse provisions (e.g., business purpose, substance-over-form, step transaction 

or conduit principles) determine whether a particular transaction 

should be recast in accordance with its substance. Thus, internal 

law principles of the source Contracting State may be applied to 

identify the beneficial owner of an item of income, and Article 22 

then will be applied to the beneficial owner to determine if that 

person is entitled to the benefits of the Convention with respect to 

such income. 

Paragraph 2 

Paragraph 2 has five subparagraphs, each of which describes a 

category of residents that are entitled to all benefits of the Convention. 

It is intended that the provisions of paragraph 2 will be self-executing. Unlike the provisions of paragraph 7, discussed below, 

claiming benefits under paragraph 2 does not require advance competent authority ruling or approval. The tax authorities may, of 

course, on review, determine that the taxpayer has improperly interpreted the paragraph and is not entitled to the benefits claimed. 

Individuals—Subparagraph 2(a) 

Subparagraph 2(a) provides that individual residents of a Contracting State will be entitled to all treaty benefits. If such an individual receives income as a nominee on behalf of a third country 

resident, benefits may be denied under the respective articles of 

the Convention by the requirement that the beneficial owner of the 

income be a resident of a Contracting State. 

Governments—Subparagraph 2(b) 

Subparagraph 2(b) provides that the Contracting States and any 

political subdivision or local authority thereof will be entitled to all 

benefits of the Convention. 

Publicly-Traded Corporations—Subparagraph 2(c)(i) 

Subparagraph 2(c) applies to two categories of companies: publicly traded companies and subsidiaries of publicly traded companies. A company resident in a Contracting State is entitled to all 

the benefits of the Convention under clause (i) of subparagraph (c) 

if the principal class of its shares, and any disproportionate class 

of shares, is regularly traded on one or more recognized stock exchanges and the company satisfies at least one of the following additional requirements: first, the company’s principal class of shares 

is primarily traded on one or more recognized stock exchanges located in the Contracting State of which the company is a resident, 

or, in the case of a company resident in Hungary, on a recognized 

stock exchange located within the European Union or in any other 

European Free Trade Association state, or, in the case of a company resident in the United States, on a recognized stock exchange 

located in another state that is a party to the North American Free 


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Trade Agreement; or, second, the company’s primary place of management and control is in its State of residence. 

The term ‘‘recognized stock exchange’’ is defined in subparagraph 

(a) of paragraph 8. It includes (i) the NASDAQ System and any 

stock exchange registered with the Securities and Exchange Commission as a national securities exchange for purposes of the Securities Exchange Act of 1934, (ii) the stock exchange of Budapest, 

(iii) the stock exchanges of Amsterdam, Brussels, Frankfurt, London, Paris, Vienna, Warsaw, and Zurich; and (iv) any other stock 

exchange agreed upon by the competent authorities of the Contracting States. 

If a company has only one class of shares, it is only necessary 

to consider whether the shares of that class meet the relevant trading requirements. If the company has more than one class of 

shares, it is necessary as an initial matter to determine which class 

or classes constitute the ‘‘principal class of shares’’. The term ‘‘principal class of shares’’ is defined in subparagraph 8(b) to mean the 

ordinary or common shares of the company representing the majority of the aggregate voting power and value of the company. If the 

company does not have a class of ordinary or common shares representing the majority of the aggregate voting power and value of 

the company, then the ‘‘principal class of shares’’ is that class or 

any combination of classes of shares that represents, in the aggregate, a majority of the voting power and value of the company. Although in a particular case involving a company with several classes of shares it is conceivable that more than one group of classes 

could be identified that account for more than 50% of the shares, 

it is only necessary for one such group to satisfy the requirements 

of this subparagraph in order for the company to be entitled to benefits. Benefits would not be denied to the company even if a second, 

non-qualifying, group of shares with more than half of the company’s voting power and value could be identified. 

A company whose principal class of shares is regularly traded on 

a recognized stock exchange will nevertheless not qualify for benefits under subparagraph 2(c)(i) if it has a disproportionate class of 

shares that is not regularly traded on a recognized stock exchange. 

The term ‘‘disproportionate class of shares’’ is defined in subparagraph 8(c). A company has a disproportionate class of shares if it 

has outstanding a class of shares which is subject to terms or other 

arrangements that entitle the holder to a larger portion of the company’s income, profit, or gain in the other Contracting State than 

that to which the holder would be entitled in the absence of such 

terms or arrangements. Thus, for example, a company resident in 

Hungary meets the test of subparagraph 8(c) if it has outstanding 

a class of ‘‘tracking stock’’ that pays dividends based upon a formula that approximates the company’s return on its assets employed in the United States. 

The following example illustrates this result. 

Example. HCo is a corporation resident in Hungary. HCo has 

two classes of shares: Common and Preferred. The Common shares 

are listed and regularly traded on the Budapest Stock Exchange. 

The Preferred shares have no voting rights and are entitled to receive dividends equal in amount to interest payments that HCo receives from unrelated borrowers in the United States. The PreVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00068 Fmt 6601 Sfmt 6601 E:\HR\OC\ER007.XXX ER007

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ferred shares are owned entirely by a single investor that is a resident of a country with which the United States does not have a tax 

treaty. The Common shares account for more than 50 percent of 

the value of HCo and for 100 percent of the voting power. Because 

the owner of the Preferred shares is entitled to receive payments 

corresponding to the U.S. source interest income earned by HCo, 

the Preferred shares are a disproportionate class of shares. Because 

the Preferred shares are not regularly traded on a recognized stock 

exchange, MCo will not qualify for benefits under subparagraph 

2(c)(i). 

The term ‘‘regularly traded’’ is not defined in the Convention. In 

accordance with paragraph 2 of Article 3 (General Definitions), this 

term will be defined by reference to the domestic tax laws of the 

State from which treaty benefits are sought, generally the source 

State. In the case of the United States, this term is understood to 

have the meaning it has under Treas. Reg. section 1.884- 

5(d)(4)(i)(B), relating to the branch tax provisions of the Code. 

Under these regulations, a class of shares is considered to be ‘‘regularly traded’’ if two requirements are met: trades in the class of 

shares are made in more than de minimis quantities on at least 60 

days during the taxable year, and the aggregate number of shares 

in the class traded during the year is at least 10 percent of the average number of shares outstanding during the year. Sections 

1.884-5(d)(4)(i)(A), (ii) and (iii) will not be taken into account for 

purposes of defining the term ‘‘regularly traded’’ under the Convention. 

The regular trading requirement can be met by trading on any 

recognized exchange or exchanges located in either State. Trading 

on one or more recognized stock exchanges may be aggregated for 

purposes of this requirement. Thus, a U.S. company could satisfy 

the regularly traded requirement through trading, in whole or in 

part, on a recognized stock exchange located in Hungary. Authorized but unissued shares are not considered for purposes of this 

test. 

The term ‘‘primarily traded’’ is not defined in the Convention. In 

accordance with paragraph 2 of Article 3, this term will have the 

meaning it has under the laws of the State concerning the taxes 

to which the Convention applies, generally the source State. In the 

case of the United States, this term is understood to have the 

meaning it has under Treas. Reg. section 1.884-5(d)(3), relating to 

the branch tax provisions of the Code. Accordingly, stock of a corporation is ‘‘primarily traded’’ if the number of shares in the company’s principal class of shares that are traded during the taxable 

year on all recognized stock exchanges in the Contracting State of 

which the company is a resident exceeds the number of shares in 

the company’s principal class of shares that are traded during that 

year on established securities markets in any other single foreign 

country. 

A company whose principal class of shares is regularly traded on 

a recognized exchange but cannot meet the primarily traded test 

may claim treaty benefits if its primary place of management and 

control is in its country of residence. This test should be distinguished from the ‘‘place of effective management’’ test which is 

used in the OECD Model and by many other countries to establish 


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residence. In some cases, the place of effective management test 

has been interpreted to mean the place where the board of directors meets. By contrast, the primary place of management and control test looks to where day-to-day responsibility for the management of the company (and its subsidiaries) is exercised. The company’s primary place of management and control will be located in 

the State in which the company is a resident only if the executive 

officers and senior management employees exercise day-to-day responsibility for more of the strategic, financial and operational policy decision making for the company (including direct and indirect 

subsidiaries) in that State than in the other State or any third 

state, and the staff that support the management in making those 

decisions are also based in that State. Thus, the test looks to the 

overall activities of the relevant persons to see where those activities are conducted. 

In most cases, it will be a necessary, but not a sufficient, condition that the headquarters of the company (that is, the place at 

which the CEO and other top executives normally are based) be located in the Contracting State of which the company is a resident. 

To apply the test, it will be necessary to determine which persons 

are to be considered ‘‘executive officers and senior management employees’’. In most cases, it will not be necessary to look beyond the 

executives who are members of the Board of Directors (the ‘‘inside 

directors’’) in the case of a U.S. company. That will not always be 

the case, however; in fact, the relevant persons may be employees 

of subsidiaries if those persons make the strategic, financial and 

operational policy decisions. Moreover, it would be necessary to 

take into account any special voting arrangements that result in 

certain board members making certain decisions without the participation of other board members. 

Subsidiaries of Publicly-Traded Corporations—Subparagraph 

2(c)(ii) 

A company resident in a Contracting State is entitled to all the 

benefits of the Convention under subparagraph 2(c)(ii) if five or 

fewer publicly traded companies described in subparagraph 2(c)(i) 

are the direct or indirect owners of at least 50 percent of the aggregate vote and value of the company’s shares (and at least 50 percent of any disproportionate class of shares). If the publicly-traded 

companies are indirect owners, however, each of the intermediate 

companies must be a resident of one of the Contracting States. 

Thus, for example, a company that is a resident of Hungary, all 

the shares of which are owned by another company that is a resident of Hungary, would qualify for benefits under subparagraph 

2(c) if the principal class of shares (and any disproportionate classes of shares) of the parent company are regularly and primarily 

traded on a recognized stock exchange in Hungary. However, such 

a subsidiary would not qualify for benefits under clause (ii) if the 

publicly traded parent company were a resident of a third state, for 

example, and not a resident of the United States or Hungary. Furthermore, if a parent company in Hungary indirectly owned the 

bottom-tier company through a chain of subsidiaries, each such 

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dent of the United States or Hungary in order for the subsidiary 

to meet the test in clause (ii). 

Tax Exempt Organizations—Subparagraph 2(d) 

Subparagraph 2(d) provides rules by which the tax exempt organizations described in paragraph 2 of Article 4 (Resident) will be 

entitled to all the benefits of the Convention. A pension fund will 

qualify for benefits if more than fifty percent of the beneficiaries, 

members or participants of the organization are individuals resident in either Contracting State. For purposes of this provision, the 

term ‘‘beneficiaries’’ should be understood to refer to the persons 

receiving benefits from the organization. On the other hand, a taxexempt organization other than a pension fund automatically qualifies for benefits, without regard to the residence of its beneficiaries 

or members. Entities qualifying under this rule generally are those 

that are exempt from tax in their State of residence and that are 

organized and operated exclusively to fulfill religious, charitable, 

scientific, artistic, cultural, or educational purposes. 

Ownership/Base Erosion—Subparagraph 2(e) 

Subparagraph 2(e) provides an additional method to qualify for 

treaty benefits that applies to any form of legal entity that is a 

resident of a Contracting State. The test provided in subparagraph 

(e), the so-called ownership and base erosion test, is a two-part 

test. Both prongs of the test must be satisfied for the resident to 

be entitled to treaty benefits under subparagraph 2(e). 

The ownership prong of the test, under clause (i), requires that 

50 percent or more of each class of shares or other beneficial interests in the person is owned, directly or indirectly, on at least half 

the days of the person’s taxable year by persons who are residents 

of the Contracting State of which that person is a resident and that 

are themselves entitled to treaty benefits under subparagraphs 

2(a), 2(b), 2(c)(i), or 2(d). In the case of indirect owners, however, 

each of the intermediate owners must be a resident of that Contracting State. Paragraph 6 of the Exchange of Notes provides that 

the conditions of clause (i) may be met if the ownership test is satisfied on at least half of the days of the taxable year, without regard to whether the days on which the test is satisfied are consecutive. 

Trusts may be entitled to benefits under this provision if they 

are treated as residents under Article 4 (Residence) and they otherwise satisfy the requirements of this subparagraph. For purposes 

of this subparagraph, the beneficial interests in a trust will be considered to be owned by its beneficiaries in proportion to each beneficiary’s actuarial interest in the trust. The interest of a remainder 

beneficiary will be equal to 100 percent less the aggregate percentages held by income beneficiaries. A beneficiary’s interest in a trust 

will not be considered to be owned by a person entitled to benefits 

under subparagraphs 2(a), 2(b), 2(c)(i), or 2(d) if it is not possible 

to determine the beneficiary’s actuarial interest. Consequently, if it 

is not possible to determine the actuarial interest of the beneficiaries in a trust, the ownership test under clause i) cannot be 

satisfied, unless all possible beneficiaries are persons entitled to 

benefits under subparagraphs 2(a), 2(b), 2(c)(i), or 2(d). 


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The base erosion prong of clause (ii) of subparagraph (e) is satisfied with respect to a person if less than 50 percent of the person’s 

gross income for the taxable year, as determined under the tax law 

in the person’s State of residence, is paid or accrued to persons who 

are not residents of either Contracting State entitled to benefits 

under subparagraphs 2(a), 2(b), 2(c)(i), or 2(d), in the form of payments deductible for tax purposes in the payer’s State of residence. 

These amounts do not include arm’s-length payments in the ordinary course of business for services or tangible property. Such 

amounts also do not include payments in respect of financial obligations to a bank (including, in the case of Hungary, a credit institution) that is not related to the payor. Paragraph 7 of the Exchange of Notes provides the term ‘‘accrued’’ has the meaning given 

to it under the domestic law (including accounting principles applicable for tax purposes) of the State of residence of the person seeking the benefits of the Convention. To the extent they are deductible from the taxable base, trust distributions are deductible payments. However, depreciation and amortization deductions, which 

do not represent payments or accruals to other persons, are disregarded for this purpose. 

Paragraph 3 

Paragraph 3 sets forth an alternative test under which a resident 

of a Contracting State may receive treaty benefits with respect to 

certain items of income that are connected to an active trade or 

business conducted in its State of residence. A resident of a Contracting State may qualify for benefits under paragraph 3 whether 

or not it also qualifies under paragraph 2 or 4. 

Subparagraph 3(a) sets forth the general rule that a resident of 

a Contracting State engaged in the active conduct of a trade or 

business in that State may obtain the benefits of the Convention 

with respect to an item of income derived in the other Contracting 

State. As provided in paragraph 9 of the Exchange of Notes, however, the item of income must be derived in connection with or incidental to that trade or business. 

The term ‘‘trade or business’’ is not defined in the Convention. 

Pursuant to paragraph 2 of Article 3 (General Definitions), when 

determining whether a resident of Hungary is entitled to the benefits of the Convention under paragraph 3 of this Article with respect to an item of income derived from sources within the United 

States, the United States will ascribe to this term the meaning 

that it has under the law of the United States. Accordingly, the 

U.S. competent authority will refer to the regulations issued under 

section 367(a) for the definition of the term ‘‘trade or business.’’ In 

general, therefore, a trade or business will be considered to be a 

specific unified group of activities that constitute or could constitute an independent economic enterprise carried on for profit. 

Furthermore, a corporation generally will be considered to carry on 

a trade or business only if the officers and employees of the corporation conduct substantial managerial and operational activities. 

The business of making or managing investments for the resident’s own account will be considered to be a trade or business only 

when part of insurance or securities activities conducted by an insurance company or a registered securities dealer. In the case of a 


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resident of the United States, the business of making or managing 

investments for the resident’s own account will also be considered 

to be a trade or business when part of banking activities carried 

on by a bank. In the case of a resident of Hungary, such a business 

will be considered a trade or business when part of regulated financial services carried on by a financial institution. Paragraph 8 of 

the Exchange of Notes provides that the term ‘‘regulated financial 

services’’ means the services listed in paragraph (1) of section 3 of 

Hungarian Act CXII of 1996 on Credit Institutions and Financial 

Enterprises, or any subsequently enacted similar legislation agreed 

to by the competent authorities. 

Such investment activities conducted by a person other than a 

bank, insurance company, registered securities dealer, or financial 

institution will not be considered to be the conduct of an active 

trade or business, nor would they be considered to be the conduct 

of an active trade or business if conducted by a bank, insurance 

company, registered securities dealer, or financial institution, but 

not as part of the company’s banking, insurance, dealer, or regulated financial services business. Because a headquarters operation 

is in the business of managing investments, a company that functions solely as a headquarters company will not be considered to 

be engaged in an active trade or business for purposes of paragraph 3. It may, however, qualify for benefits under paragraph 5. 

An item of income is derived in connection with a trade or business if the income-producing activity in the State of source is a line 

of business that ‘‘forms a part of’’ or is ‘‘complementary’’ to the 

trade or business conducted in the State of residence by the income 

recipient. 

A business activity generally will be considered to form part of 

a business activity conducted in the State of source if the two activities involve the design, manufacture or sale of the same products or type of products, or the provision of similar services. The 

line of business in the State of residence may be upstream, downstream, or parallel to the activity conducted in the State of source. 

Thus, the line of business may provide inputs for a manufacturing 

process that occurs in the State of source, may sell the output of 

that manufacturing process, or simply may sell the same sorts of 

products that are being sold by the trade or business carried on in 

the State of source. 

Example 1. USCo is a corporation resident in the United States. 

USCo is engaged in an active manufacturing business in the 

United States. USCo owns 100 percent of the shares of HCo, a corporation resident in Hungary. HCo distributes USCo products in 

Hungary. Since the business activities conducted by the two corporations involve the same products, HCo’s distribution business is 

considered to form a part of USCo’s manufacturing business. 

Example 2. The facts are the same as in Example 1, except that 

USCo does not manufacture. Rather, USCo operates a large research and development facility in the United States that licenses 

intellectual property to affiliates worldwide, including HCo. HCo 

and other USCo affiliates then manufacture and market the USCodesigned products in their respective markets. Since the activities 

conducted by HCo and USCo involve the same product lines, these 


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activities are considered to form a part of the same trade or business. 

For two activities to be considered to be ‘‘complementary,’’ the activities need not relate to the same types of products or services, 

but they should be part of the same overall industry and be related 

in the sense that the success or failure of one activity will tend to 

result in success or failure for the other. Where more than one 

trade or business is conducted in the State of source and only one 

of the trades or businesses forms a part of or is complementary to 

a trade or business conducted in the State of residence, it is necessary to identify the trade or business to which an item of income 

is attributable. Royalties generally will be considered to be derived 

in connection with the trade or business to which the underlying 

intangible property is attributable. Dividends will be deemed to be 

derived first out of earnings and profits of the treaty-benefited 

trade or business, and then out of other earnings and profits. Interest income may be allocated under any reasonable method consistently applied. A method that conforms to U.S. principles for expense allocation will be considered a reasonable method. 

Example 3. Americair is a corporation resident in the United 

States that operates an international airline. HSub is a whollyowned subsidiary of Americair resident in Hungary. HSub operates 

a chain of hotels in Hungary that are located near airports served 

by Americair flights. Americair frequently sells tour packages that 

include air travel to Hungary and lodging at HSub hotels. Although 

both companies are engaged in the active conduct of a trade or 

business, the businesses of operating a chain of hotels and operating an airline are distinct trades or businesses. Therefore HSub’s 

business does not form a part of Americair’s business. However, 

HSub’s business is considered to be complementary to Americair’s 

business because they are part of the same overall industry (travel) 

and the links between their operations tend to make them interdependent. 

Example 4. The facts are the same as in Example 3, except that 

HSub owns an office building in Hungary instead of a hotel chain. 

No part of Americair’s business is conducted through the office 

building. HSub’s business is not considered to form a part of or to 

be complementary to Americair’s business. They are engaged in 

distinct trades or businesses in separate industries, and there is no 

economic dependence between the two operations. 

Example 5. USFlower is a corporation resident in the United 

States. USFlower produces and sells flowers in the United States 

and other countries. USFlower owns all the shares of HHolding, a 

corporation resident in Hungary. HHolding is a holding company 

that is not engaged in a trade or business. HHolding owns all the 

shares of three corporations that are resident in Hungary: 

HFlower, HLawn, and HFish. HFlower distributes USFlower flowers under the USFlower trademark in Hungary. HLawn markets 

a line of lawn care products in Hungary under the USFlower trademark. In addition to being sold under the same trademark, HLawn 

and HFlower products are sold in the same stores and sales of each 

company’s products tend to generate increased sales of the other’s 

products. HFish imports fish from the United States and distributes it to fish wholesalers in Hungary. For purposes of paragraph 


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3, the business of HFlower forms a part of the business of 

USFlower, the business of HLawn is complementary to the business of USFlower, and the business of HFish is neither part of nor 

complementary to that of USFlower. 

An item of income derived from the State of source is ‘‘incidental 

to’’ the trade or business carried on in the State of residence if production of the item facilitates the conduct of the trade or business 

in the State of residence. An example of incidental income is the 

temporary investment of working capital of a person in the State 

of residence in securities issued by persons in the State of source. 

Subparagraph 3(b) states a further condition to the general rule 

in subparagraph (a) in cases where the trade or business generating the item of income in question is carried on either by the person deriving the income or by any associated enterprises. Subparagraph 3(b) states that the trade or business carried on in the State 

of residence, under these circumstances, must be substantial in relation to the activity in the State of source. Paragraph 10 of the 

Exchange of Notes elaborates on the purpose and application of the 

substantiality requirement. The requirement is intended to prevent 

a narrow case of treaty-shopping abuses in which a company attempts to qualify for benefits by engaging in de minimis connected 

business activities in the treaty country in which it is resident (i.e., 

activities that have little economic cost or effect with respect to the 

company business as a whole). 

The determination of substantiality is made based upon all the 

facts and circumstances and takes into account the comparative 

sizes of the trades or businesses in each Contracting State the nature of the activities performed in each Contracting State, and the 

relative contributions made to that trade or business in each Contracting State. In any case, in making each determination or comparison, due regard will be given to the relative sizes of the U.S. 

and Hungarian economies. In addition to this subjective rule, paragraph 10 of the Exchange of Notes provides a safe harbor under 

which the trade or business of the income recipient may be deemed 

to be substantial based on three ratios that compare the size of the 

recipient’s activities to those conducted in the other State. Under 

this safe harbor, a trade or business will be deemed substantial if, 

for the preceding taxable year, or for the average of the three preceding taxable years, the asset value, the gross income, and the 

payroll expense that are related to the trade or business in the income recipient’s State of residence each equals at least 7.5 percent 

of the resident’s (and any related parties’) proportionate share of 

the asset value, gross income, and payroll expense, respectively, 

that generated the income in the other Contracting State, and the 

average of the three ratios in each such year exceeds 10 percent. 

For purposes of this safe harbor, if the income recipient owns, directly or indirectly, less than 100 percent of an activity conducted 

in either State, only the income recipient’s proportionate interest in 

such activity shall be taken into account. 

The determination in subparagraph 3(b) is made separately for 

each item of income derived from the State of source. It therefore 

is possible that a person would be entitled to the benefits of the 

Convention with respect to one item of income but not with respect 

to another. If a resident of a Contracting State is entitled to treaty 


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benefits with respect to a particular item of income under paragraph 3, the resident is entitled to all benefits of the Convention 

insofar as they affect the taxation of that item of income in the 

State of source. 

The application of the substantiality requirement only to income 

from related parties focuses only on potential abuse cases, and does 

not hamper certain other kinds of non-abusive activities, even 

though the income recipient resident in a Contracting State may be 

very small in relation to the entity generating income in the other 

Contracting State. For example, if a small U.S. research firm develops a process that it licenses to a very large, unrelated, pharmaceutical manufacturer in Hungary, the size of the U.S. research 

firm would not have to be tested against the size of the manufacturer. Similarly, a small U.S. bank that makes a loan to a very 

large unrelated company operating a business in Hungary would 

not have to pass a substantiality test to receive treaty benefits 

under Paragraph 3. 

Subparagraph 3(c) provides special attribution rules for purposes 

of applying the substantive rules of subparagraphs 3(a) and 3(b). 

Thus, these rules apply for purposes of determining whether a person meets the requirement in subparagraph 3(a) that it be engaged 

in the active conduct of a trade or business and that the item of 

income is derived in connection with that active trade or business, 

and for making the comparison required by the ‘‘substantiality’’ requirement in subparagraph 3(b). Subparagraph 3(c) attributes to a 

person activities conducted by persons ‘‘connected’’ to such person. 

A person (‘‘X’’) is connected to another person (‘‘Y’’) if X possesses 

50 percent or more of the beneficial interest in Y (or if Y possesses 

50 percent or more of the beneficial interest in X). For this purpose, 

X is connected to a company if X owns shares representing fifty 

percent or more of the aggregate voting power and value of the 

company or fifty percent or more of the beneficial equity interest 

in the company. X also is connected to Y if a third person possesses 

fifty percent or more of the beneficial interest in both X and Y. For 

this purpose, if X or Y is a company, the threshold relationship 

with respect to such company or companies is fifty percent or more 

of the aggregate voting power and value or fifty percent or more 

of the beneficial equity interest. Finally, X is connected to Y if, 

based upon all the facts and circumstances, X controls Y, Y controls 

X, or X and Y are controlled by the same person or persons. 

Paragraph 4 

Paragraph 4 sets forth a derivative benefits test that is potentially applicable to all treaty benefits, although the test is applied 

to individual items of income. In general, a derivative benefits test 

entitles certain companies that are residents of a Contracting State 

to treaty benefits if the owner of the company would have been entitled to the same benefit had the income in question flowed directly to that owner. To qualify under this paragraph, the company 

must meet an ownership test and a base erosion test. 

Subparagraph 4(a) sets forth the ownership test. Under this test, 

seven or fewer equivalent beneficiaries must own shares representing at least 95 percent of the aggregate voting power and 

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tionate class of shares. Ownership may be direct or indirect. In addition, paragraph 11 of the Exchange of Notes provides that the 

competent authorities of both countries will ordinarily grant treaty 

benefits where a company claiming derivative benefits under paragraph 4 is owned directly by up to ten individuals, provided that 

such individuals are equivalent beneficiaries and the base erosion 

requirements of subparagraph 4(b) and any other requirements for 

benefits under the Convention are satisfied. 

The term ‘‘equivalent beneficiary’’ is defined in subparagraph 

8(e). This definition may be met in two alternative ways, the first 

of which has two requirements. 

Under the first alternative, a person may be an equivalent beneficiary because it is entitled to equivalent benefits under a tax treaty between the country of source and the country in which the person is a resident. This alternative has two requirements. 

The first requirement is that the person must be a resident of 

a member state of the European Union, or European Free Trade 

Association, or of a party to the North American Free Trade Agreement (collectively, ‘‘qualifying States’’). 

The second requirement of the definition of ‘‘equivalent beneficiary’’ is that the person must be entitled to equivalent benefits 

under an applicable treaty. To satisfy the second requirement, the 

person must be entitled to all the benefits of a comprehensive tax 

treaty between the Contracting State from which benefits of the 

Convention are claimed and a qualifying state under provisions 

that are analogous to the rules in subparagraphs 2(a), 2(b), 2(c)(i), 

or 2(d) of this Article. If the treaty in question does not have a comprehensive limitation on benefits article, this requirement is met 

only if the person would be entitled to treaty benefits under the 

tests in subparagraphs 2(a), 2(b), 2(c)(i), or 2(d) of this Article if the 

person were a resident of one of the Contracting States. 

In order to satisfy the second requirement necessary to qualify 

as an ‘‘equivalent beneficiary’’ under subparagraph 8(e)(i)(B) with 

respect to dividends, interest, royalties or branch tax, the person 

must be entitled to a rate of tax that is at least as low as the tax 

rate that would apply under the Convention to such income. Thus, 

the rates to be compared are: (1) the rate of tax that the source 

State would have imposed if a qualified resident of the other Contracting State was the beneficial owner of the income; and (2) the 

rate of tax that the source State would have imposed if the third 

state resident received the income directly from the source State. 

Subparagraph 8(f) provides a special rule to take account of the 

fact that withholding taxes on many inter-company dividends, interest and royalties are exempt within the European Union by reason of various EU directives, rather than by tax treaty. If a U.S. 

company receives such payments from a Hungarian company, and 

that U.S. company is owned by a company resident in a member 

state of the European Union that would have qualified for an exemption from withholding tax if it had received the income directly, 

the parent company will be treated as an equivalent beneficiary. 

This rule is necessary because many European Union member 

countries have not re-negotiated their tax treaties to reflect the exemptions available under the directives. 


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The requirement that a person be entitled to ‘‘all the benefits’’ of 

a comprehensive tax treaty eliminates those persons that qualify 

for benefits with respect to only certain types of income. Accordingly, the fact that a French parent of a Hungarian company is engaged in the active conduct of a trade or business in France and 

therefore would be entitled to the benefits of the U.S.-France treaty 

if it received dividends directly from a U.S. subsidiary of the Hungarian company is not sufficient for purposes of this paragraph. 

Further, the French company cannot be an equivalent beneficiary 

if it qualifies for benefits only with respect to certain income as a 

result of a ‘‘derivative benefits’’ provision in the U.S.-France treaty. 

However, it would be possible to look through the French company 

to its parent company to determine whether the parent company 

is an equivalent beneficiary. 

The second alternative for satisfying the ‘‘equivalent beneficiary’’ 

test is available only to residents of one of the two Contracting 

States. U.S. or Hungarian residents who are eligible for treaty benefits by reason of subparagraphs 2(a), 2(b), 2(c)(i), or 2(d) are equivalent beneficiaries for purposes of the relevant tests in this Article. 

Thus, a Hungarian individual will be an equivalent beneficiary 

without regard to whether the individual would have been entitled 

to receive the same benefits if it received the income directly. A 

resident of a third country cannot qualify for treaty benefits under 

these provisions by reason of those paragraphs or any other rule 

of the treaty, and therefore does not qualify as an equivalent beneficiary under this alternative. Thus, a resident of a third country 

can be an equivalent beneficiary only if it would have been entitled 

to equivalent benefits had it received the income directly. 

The second alternative was included in order to clarify that ownership by certain residents of a Contracting State would not disqualify a U.S. or Hungarian company under this paragraph. Thus, 

for example, if 90 percent of a Hungarian company is owned by five 

companies that are resident in member states of the European 

Union who satisfy the requirements of subparagraph 8(d)(i), and 10 

percent of the Hungarian company is owned by a U.S. or Hungarian individual, then the Hungarian company still can satisfy the 

requirements of subparagraph 4(a). 

Subparagraph 4(b) sets forth the base erosion test. A company 

meets this base erosion test if less than 50 percent of its gross income (as determined in the company’s State of residence) for the 

taxable period is paid or accrued, directly or indirectly, to a person 

or persons who are not equivalent beneficiaries in the form of payments deductible for tax purposes in company’s State of residence. 

These amounts do not include arm’s-length payments in the ordinary course of business for services or tangible property. This test 

is the same as the base erosion test in subparagraph 2(e)(ii), except 

that the test in paragraph 4(b) focuses on base-eroding payments 

to persons who are not equivalent beneficiaries. 

Paragraph 5 

Paragraph 5 provides that a resident of one of the Contracting 

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national corporate group. The provisions of this paragraph are consistent with the other 

U.S. tax treaties where this provision has been adopted. For this 

purpose, the multinational corporate group includes all corporations that the headquarters company supervises and excludes affiliated corporations not supervised by the headquarters company. 

The headquarters company does not have to own shares in the 

companies that it supervises. In order to be considered a headquarters company, the person must meet several requirements that 

are enumerated in Paragraph 5. These requirements are discussed 

below. 

Overall Supervision and Administration 

Subparagraph 5(a) provides that the person must provide a substantial portion of the overall supervision and administration of the 

group. This activity may include group financing, but group financing may not be the principal activity of the person functioning as 

the headquarters company. A person only will be considered to engage in supervision and administration if it engages in a number 

of the following activities: group financing, pricing, marketing, internal auditing, internal communications, and management. Other 

activities also could be part of the function of supervision and administration. 

In determining whether a ‘‘substantial portion’’ of the overall supervision and administration of the group is provided by the headquarters company, its headquarters-related activities must be substantial in relation to the same activities for the same group performed by other entities. 

Subparagraph 5(a) does not require that the group that is supervised include persons in the other State. However, it is anticipated 

that in most cases the group will include such persons, due to the 

requirement in subparagraph 5(g), discussed below, that the income derived in the other Contracting State by the headquarters 

company be derived in connection with or be incidental to an active 

trade or business supervised by the headquarters company. 

Active Trade or Business 

Subparagraph 5(b) is the first of several requirements intended 

to ensure that the relevant group is truly ‘‘multinational.’’ This 

subparagraph provides that the corporate group supervised by the 

headquarters company must consist of corporations resident in, 

and engaged in active trades or businesses in, at least five countries. Furthermore, at least five countries must each contribute 

substantially to the income generated by the group, as the rule requires that the business activities carried on in each of the five 

countries (or groupings of countries) generate at least 10 percent 

of the gross income of the group. For purposes of the 10 percent 

gross income requirement, the income from multiple countries may 

be aggregated into non-overlapping groupings, as long as there are 

at least five individual countries or groupings that each satisfy the 

10 percent requirement. If the gross income requirement under this 

subparagraph is not met for a taxable year, the taxpayer may satisfy this requirement by applying the 10 percent gross income test 


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to the average of the gross incomes for the four years preceding the 

taxable year. 

Example 1. HHQ is a corporation resident in Hungary. HHQ 

functions as a headquarters company for a group of companies. 

These companies are resident in the United States, Canada, New 

Zealand, the United Kingdom, Malaysia, the Philippines, Singapore, and Indonesia. The gross income generated by each of these 

companies for 2008 and 2009 is as follows: 

For 2008, 10 percent of the gross income of this group 

is equal to $13.70. Only the United States, Canada, and 

the United Kingdom satisfy this requirement for that year. 

The other companies in the group may be aggregated to 

meet this requirement. Because New Zealand and Malaysia have a total gross income of $20, and the Philippines, 

Singapore, and Indonesia have a total gross income of $22, 

these two groupings of countries may be treated as the 

fourth and fifth members of the group for purposes of subparagraph (b). 

In the following year, 10 percent of the gross income is 

$15.50. Only the United States, New Zealand, and the 

United Kingdom satisfy this requirement. Because Canada 

and Malaysia have a total gross income of $27, and the 

Philippines, Singapore, and Indonesia have a total gross 

income of $28, these two groupings of countries may be 

treated as the fourth and fifth members of the group for 

purposes of subparagraph (b). The fact that Canada replaced New Zealand in a group is not relevant for this purpose. The composition of the grouping may change from 

year to year. 

Single Country Limitation 

Subparagraph 5(c) provides that the business activities carried 

on in any one country other than the headquarters company’s State 

of residence must generate less than 50 percent of the gross income 

of the group. If the gross income requirement under this subparagraph is not met for a taxable year, the taxpayer may satisfy this 

requirement applying the 50 percent gross income test to the average of the gross incomes for the four years preceding the taxable 

year. The following example illustrates the application of this subparagraph. 

Example. HHQ is a corporation resident in Hungary. HHQ functions as a headquarters company for a group of companies. HHQ 

derives dividend income from a United States subsidiary in the 

2008 taxable year. The state of residence of each of these companies, the situs of their activities and the amounts of gross income 

attributable to each for the years 2008 through 2012 are set forth 

below. 

Because the United States’ total gross income of $130 in 2012 is 

not less than 50 percent of the gross income of the group, subparagraph (c) is not satisfied with respect to dividends derived in 2012. 

However, the United States’ average gross income for the preceding 

four years may be used in lieu of the preceding year’s average. The 

United States’ average gross income for the years 2008-11 is 


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$111.00 ($444/4). The group’s total average gross income for these 

years is $230.75 ($923/4). Because $111 represents 48.1 percent of 

the group’s average gross income for the years 2008 through 2011, 

the requirement under subparagraph (c) is satisfied. 

Other State Gross Income Limitation 

Subparagraph 5(d) provides that no more than 25 percent of the 

headquarters company’s gross income may be derived from the 

other Contracting State. Thus, if the headquarters company’s gross 

income for the taxable year is $200, no more than $50 of this 

amount may be derived from the other Contracting State. If the 

gross income requirement under this subparagraph is not met for 

a taxable year, the taxpayer may satisfy this requirement by applying the 25 percent gross income test to the average of the gross incomes for the four years preceding the taxable year. 

Independent Discretionary Authority 

Subparagraph 5(e) requires that the headquarters company have 

and exercise independent discretionary authority to carry out the 

functions referred to in subparagraph 5(a). Thus, if the headquarters company was nominally responsible for group financing, 

pricing, marketing and other management functions, but merely 

implemented instructions received from another entity, the headquarters company would not be considered to have and exercise 

independent discretionary authority with respect to these functions. This determination is made individually for each function. 

For instance, a headquarters company could be nominally responsible for group financing, pricing, marketing and internal auditing 

functions, but another entity could be actually directing the headquarters company as to the group financing function. In such a 

case, the headquarters company would not be deemed to have independent discretionary authority for group financing, but it might 

have such authority for the other functions. Functions for which 

the headquarters company does not have and exercise independent 

discretionary authority are considered to be conducted by an entity 

other than the headquarters company for purposes of subparagraph 

5(a). 

Income Taxation Rules 

Subparagraph 5(f) requires that the headquarters company be 

subject to the generally applicable income taxation rules in its 

country of residence. This reference should be understood to mean 

that the company must be subject to the income taxation rules to 

which a company engaged in the active conduct of a trade or business would be subject. Thus, if one of the Contracting States has 

or introduces special taxation legislation that impose a lower rate 

of income tax on headquarters companies than is imposed on companies engaged in the active conduct of a trade or business, or provides for an artificially low taxable base for such companies, a 

headquarters company subject to these rules is not entitled to the 

benefits of the Convention under paragraph 


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In Connection With or Incidental to Trade or Business 

Subparagraph 5(g) requires that the income derived in the other 

Contracting State be derived in connection with or be incidental to 

the active business activities referred to in subparagraph (b). This 

determination is made under the principles set forth in paragraph 

3. For instance, assume that a Hungarian company satisfies the 

other requirements in paragraph 5 and acts as a headquarters 

company for a group that includes a United States corporation. If 

the group is engaged in the design and manufacture of computer 

software, but the U.S. company is also engaged in the design and 

manufacture of photocopying machines, the income that the Hungarian company derives from the United States would have to be 

derived in connection with or be incidental to the income generated 

by the computer business in order to be entitled to the benefits of 

the Convention under paragraph 5. Interest income received from 

the U.S. company also would be entitled to the benefits of the Convention under this paragraph as long as the interest was attributable to the computer business supervised by the headquarters 

company Interest income derived from an unrelated party would 

normally not, however, satisfy the requirements of this clause. 

Paragraph 6 

Paragraph 6 deals with the treatment of income in the context 

of a so-called ‘‘triangular case.’’ The term ‘‘triangular case’’ refers 

to the use of a structure like the one described in the following 

paragraph by a resident of Hungary to earn income from the 

United States: 

A resident of Hungary, who would, absent paragraph 6, qualify 

for benefits under one or more of the provisions of this Article, sets 

up a permanent establishment in a third jurisdiction that imposes 

only a low rate of tax on the income of the permanent establishment. The Hungarian resident lends funds into the United States 

through the permanent establishment. The permanent establishment, despite its third-jurisdiction location, is an integral part of 

a Hungarian resident. Therefore the income that it earns on those 

loans, absent the provisions of paragraph 6, is entitled to exemption from U.S. withholding tax under the Convention. Under a current Hungarian income tax treaty with the host jurisdiction of the 

permanent establishment, the income of the permanent establishment is exempt from Hungarian tax (alternatively, Hungary may 

choose to exempt the income of the permanent establishment from 

Hungarian income tax). Thus, the interest income, absent paragraph 6, would be exempt from U.S. tax, subject to little or no tax 

in the host jurisdiction of the permanent establishment, and exempt from Hungarian tax. 

Paragraph 6 provides that the tax benefits that would otherwise 

apply under the Convention will not apply to any item of income 

if the combined aggregate effective tax rate in the residence State 

and the third state is less than 60 percent of the general rate of 

company tax applicable in the residence State. In the case of dividends, interest and royalties to which this paragraph applies, the 

withholding tax rates under the Convention are replaced with a 15 

percent withholding tax. Any other income to which the provisions 

of paragraph 5 apply is subject to tax under the domestic law of 


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the source State, notwithstanding any other provisions of the Convention. 

In general, the principles employed under Code section 954(b)(4) 

will be employed to determine whether the profits are subject to an 

effective rate of taxation that is above the specified threshold. 

Notwithstanding the level of tax on interest and royalty income 

of the permanent establishment, paragraph 6 will not apply under 

certain circumstances. In the case of royalties, paragraph 6 will not 

apply if the royalties are received as compensation for the use of, 

or the right to use, intangible property produced or developed by 

the permanent establishment itself. In the case of any other income, paragraph 6 will not apply if that income is derived in connection with, or is incidental to, the active conduct of a trade or 

business carried on by the permanent establishment in the third 

state. The business of making, managing or simply holding investments is not considered to be an active trade or business, unless 

these are securities activities carried on by a registered securities 

dealer, or, in the case of an enterprise of the United States, banking activities carried on by a bank, or, in the case of an enterprise 

of Hungary, regulated financial services (as defined in paragraph 

8 of the Exchange of Notes) carried on by a financial institution. 

Paragraph 6 applies reciprocally. However, the United States 

does not exempt the profits of a third-jurisdiction permanent establishment of a U.S. resident from U.S. tax, either by statute or by 

treaty. 

Paragraph 7 

Paragraph 7 provides that a resident of one of the States that is 

not entitled to the benefits of the Convention as a result of paragraphs 1 through 5 still may be granted benefits under the Convention at the discretion of the competent authority of the State from 

which benefits are claimed. In making determinations under paragraph 7, that competent authority will take into account as its 

guideline whether the establishment, acquisition, or maintenance 

of the person seeking benefits under the Convention, or the conduct 

of such person’s operations, has or had as one of its principal purposes the obtaining of benefits under the Convention. Benefits will 

not be granted, however, solely because a company was established 

prior to the effective date of the Convention. In that case, a company would still be required to establish to the satisfaction of the 

competent authority clear non-tax business reasons for its formation in a Contracting State, or that the allowance of benefits would 

not otherwise be contrary to the purposes of the treaty. Thus, persons that establish operations in one of the States with a principal 

purpose of obtaining the benefits of the Convention ordinarily will 

not be granted relief under paragraph 7. 

The competent authority’s discretion is quite broad. It may grant 

all of the benefits of the Convention to the taxpayer making the request, or it may grant only certain benefits. For instance, it may 

grant benefits only with respect to a particular item of income in 

a manner similar to paragraph 3. Further, the competent authority 

may establish conditions, such as setting time limits on the duration of any relief granted. 


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For purposes of implementing paragraph 7, a taxpayer will be 

permitted to present his case to the relevant competent authority 

for an advance determination based on the facts. In these circumstances, it is also expected that, if the competent authority determines that benefits are to be allowed, they will be allowed retroactively to the time of entry into force of the relevant treaty provision or the establishment of the structure in question, whichever 

is later. 

Finally, there may be cases in which a resident of a Contracting 

State may apply for discretionary relief to the competent authority 

of his State of residence. This would arise, for example, if the benefit it is claiming is provided by the residence country, and not by 

the source country. So, for example, if a company that is a resident 

of the United States would like to claim the benefit of the resourcing rule of paragraph 3 of Article 23 (Relief from Double Taxation), but it does not meet any of the objective tests of paragraphs 

2 through 4, it may apply to the U.S. competent authority for discretionary relief. 

Paragraph 8 

Paragraph 8 defines several key terms for purposes of Article 22. 

Each of the defined terms is discussed above in the context in 

which it is used. 

ARTICLE 23 (RELIEF FROM DOUBLE TAXATION)

This Article describes the manner in which each Contracting 

State undertakes to relieve double taxation. The United States 

uses the foreign tax credit method under its internal law, and by 

treaty. 

Paragraph 1 

Paragraph 1 provides that Hungary will provide relief from double taxation through a mixture of the credit and exemption methods. 

Subparagraph 1(a) states the general rule that Hungary will exempt income derived by a resident of Hungary if the income may 

be taxed in the United States in accordance with the Convention. 

Subparagraph 1(c), however, permits Hungary to include the income corresponding to the U.S. tax in the Hungarian resident’s tax 

base in calculating the Hungarian tax on the remaining income of 

the resident. This rule provides for ‘‘exemption with progression.’’ 

Under subparagraph 1(b), Hungary provides for a tax credit rather 

than an exemption with respect to limited classes of income. If the 

income may be taxed by the United States under the provisions of 

Article 10 (Dividends) or Article 11 (Interest), Hungary will relieve 

double taxation by allowing a credit against Hungarian tax in an 

amount equal to the tax paid in the United States on such income, 

but limited to the amount of Hungarian tax attributable to such income. In the case of income that is exempted from U.S. tax under 

the provisions of the Convention, or is subject to reduced U.S. 

under the provisions of paragraph 2 of Article 10 or paragraph 2 

of Article 11, subparagraph 1(d) provides that Hungary is not required to grant an exemption. 


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Paragraph 2 

The United States agrees, in paragraph 2, to allow to its citizens 

and residents a credit against U.S. tax for income taxes paid or accrued to Hungary. Paragraph 2 also provides that Hungary’s covered taxes are income taxes for U.S. purposes. This provision is 

based on the Treasury Department’s review of Hungary’s laws. 

Subparagraph (b) provides for a deemed-paid credit, consistent 

with section 902 of the Code, to a U.S. corporation in respect of 

dividends received from a corporation resident in Hungary of which 

the U.S. corporation owns at least 10 percent of the voting stock. 

This credit is for the tax paid by the corporation to Hungary on the 

profits out of which the dividends are considered paid. 

The credits allowed under paragraph 2 are allowed in accordance 

with the provisions and subject to the limitations of U.S. law, as 

that law may be amended over time, so long as the general principle of the Article, that is, the allowance of a credit, is retained. 

Thus, although the Convention provides for a foreign tax credit, the 

terms of the credit are determined by the provisions, at the time 

a credit is given, of the U.S. statutory credit. 

Therefore, the U.S. credit under the Convention is subject to the 

various limitations of 

U.S. law (see, e.g., Code sections 901-909). For example, the credit against U.S. tax generally is limited to the amount of U.S. tax 

due with respect to net foreign source income within the relevant 

foreign tax credit limitation category (see Code section 904(a) and 

(d)), and the dollar amount of the credit is determined in accordance with U.S. currency translation rules (see, e.g., Code section 

986). Similarly, U.S. law applies to determine carryover periods for 

excess credits and other inter-year adjustments. 

Paragraph 3 

Paragraph 3 provides a re-sourcing rule for gross income covered 

by paragraph 2. Paragraph 3 is intended to ensure that a U.S. resident can obtain an appropriate amount of U.S. foreign tax credit 

for income taxes paid to Hungary when the Convention assigns to 

Hungary primary taxing rights over an item of gross income. 

Accordingly, if the Convention allows Hungary to tax an item of 

gross income (as defined under U.S. law) derived by a resident of 

the United States, the United States will treat that item of gross 

income as gross income from sources within Hungary for U.S. foreign tax credit purposes. The foreign tax credit limitation generally 

applies separately to re-sourced income. Furthermore, the paragraph 3 re-sourcing rule applies to gross income, not net income. 

Accordingly, U.S. expense allocation and apportionment rules, see, 

e.g., Treas. Reg. section 1.861-9, continue to apply to income 

resourced under paragraph 3. 

Paragraph 4 

Paragraph 4 provides special rules for the tax treatment in both 

States of certain types of income derived from U.S. sources by U.S. 

citizens who are residents of Hungary. Since U.S. citizens, regardless of residence, are subject to United States tax at ordinary progressive rates on their worldwide income, the U.S. tax on the U.S. 

source income of a U.S. citizen resident in Hungary may exceed the 


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U.S. tax that may be imposed under the Convention on an item of 

U.S. source income derived by a resident of Hungary who is not a 

U.S. citizen. The provisions of paragraph 4 ensure that Hungary 

does not bear the cost of U.S. taxation of its citizens who are residents of Hungary. 

Subparagraph 4(a) provides, with respect to items of income from 

sources within the United States, special credit rules for Hungary. 

These rules apply to items of U.S.-source income that would be either exempt from U.S. tax or subject to reduced rates of U.S. tax 

under the provisions of the Convention if they had been received 

by a resident of Hungary who is not a U.S. citizen. The tax credit 

provided by Hungary under subparagraph 4(a) with respect to such 

items need not exceed the U.S. tax that may be imposed under the 

Convention, other than tax imposed solely by reason of the U.S. 

citizenship of the taxpayer under the provisions of the saving 

clause of paragraph 4 of Article 1 (General Scope). 

For example, if a U.S. citizen resident in Hungary receives portfolio dividends from sources within the United States, the foreign 

tax credit granted by Hungary would be limited to 15 percent of 

the dividend—the U.S. tax that may be imposed under subparagraph (b) of paragraph 2 of Article 10 (Dividends)—even if the 

shareholder is subject to U.S. net income tax because of his U.S. 

citizenship. With respect to royalty or interest income, the other 

Contracting State would allow no foreign tax credit, because its 

residents are exempt from U.S. tax on these classes of income 

under the provisions of Articles 11 (Interest) and 12 (Royalties). 

Subparagraph 4(b) eliminates the potential for double taxation 

that can arise because subparagraph 4(a) provides that Hungary 

need not provide full relief for the U.S. tax imposed on its citizens 

resident in Hungary. Subparagraph 4(b) provides that the United 

States will credit the income tax paid or accrued to Hungary, after 

the application of subparagraph 4(a). It further provides that in allowing the credit, the United States will not reduce its tax below 

the amount that is taken into account in Hungary in applying subparagraph 4(a). 

Since the income described in subparagraph 4(a) generally will 

be U.S. source income, special rules are required to re-source some 

of the income to Hungary in order for the United States to be able 

to credit the tax paid to Hungary. This re-sourcing is provided for 

in subparagraph 4(c), which deems the items of income referred to 

in subparagraph 4(a) to be from foreign sources to the extent necessary to avoid double taxation under paragraph 4(b). Clause (iii) 

of subparagraph 3(c) of Article 25 (Mutual Agreement Procedure) 

provides a mechanism by which the competent authorities can resolve any disputes regarding whether income is from sources within the United States. 

The following two examples illustrate the application of paragraph 4 in the case of U.S.-source portfolio dividend received by a 

U.S. citizen resident in Hungary. In both examples, the U.S. rate 

of tax on residents of Hungary, under paragraph 2 of Article 10 

(Dividends) of the Convention, is 15 percent. In both examples, the 

U.S. income tax rate on the U.S. citizen is 35 percent. In example 

1, the rate of income tax imposed in Hungary on its resident (the 


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U.S. citizen) is 25 percent (below the U.S. rate), and in example 2, 

the rate imposed on its resident is 40 percent above the U.S. rate). 

Example 1 Example 2 

Subparagraph (a) 

U.S. dividend declared ....................... $100.00 $100.00 

Notional U.S. withholding tax (Article 10(2)(b)) ...................................... 15.00 15.00 

Taxable income in Hungary ............... 100.00 100.00 

Hungarian tax before credit .............. 25.00 40.00 

Less: tax credit for notional U.S. 

withholding tax ............................... 15.00 15.00 

Net post-credit tax paid to Hungary 10.00 25.00 

Subparagraphs (b) and (c) 

U.S. pre-tax income ............................ $100.00 $100.00 

U.S. pre-credit citizenship tax ........... 35.00 35.00 

Notional U.S. withholding tax ........... 15.00 15.00 

U.S. tax eligible to be offset by credit 20.00 20.00 

Tax paid to Hungary .......................... 10.00 25.00 

Income re-sourced from U.S. to foreign source (see below) ................... 28.57 57.14 

U.S. pre-credit tax on re-sourced income ................................................. 10.00 20.00 

U.S. credit for tax paid to Hungary .. 10.00 20.00 

Net post-credit U.S. tax ..................... 10.00 0.00 

Total U.S. tax ...................................... 25.00 15.00 

In both examples, in the application of subparagraph 4(a), Hungary credits a 15 percent U.S. tax against its residence tax on the 

U.S. citizen. In the first example, the net tax paid to Hungary after 

the foreign tax credit is $10.00; in the second example, it is $25.00. 

In the application of subparagraphs (b) and (c), from the U.S. tax 

due before credit of $35.00, the United States subtracts the amount 

of the U.S. source tax of $15.00, against which no U.S. foreign tax 

credit is allowed. This subtraction ensures that the United States 

collects the tax that it is due under the Convention as the State 

of source. 

In both examples, given the 35 percent U.S. tax rate, the maximum amount of U.S. tax against which credit for the tax paid to 

Hungary may be claimed is $20 ($35 U.S. tax minus $15 U.S. withholding tax). Initially, all of the income in both examples was from 

sources within the United States. For a U.S. foreign tax credit to 

be allowed for the full amount of the tax paid to Hungary, an appropriate amount of the income must be re-sourced to Hungary 

under subparagraph (c). 

The amount that must be re-sourced depends on the amount of 

tax for which the U.S. citizen is claiming a U.S. foreign tax credit. 


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In example 1, the tax paid to Hungary was $10. For this amount 

to be creditable against U.S. tax, $28.57 ($10 tax divided by 35 percent U.S. tax rate) must be re-sourced to Hungary. When the tax 

is credited against the $10 of U.S. tax on this re-sourced income, 

there is a net U.S. tax of $10 due after credit ($20 U.S. tax eligible 

to be offset by credit, minus $10 tax paid to Hungary). Thus, in example 1, there is a total of $25 in U.S. tax ($15 U.S. withholding 

tax plus $10 residual U.S. tax). In example 2, the tax paid to Hungary was $25, but, because the United States subtracts the U.S. withholding tax of $15 from the 

total U.S. tax of $35, only $20 of U.S. taxes may be offset by taxes 

paid to Hungary. Accordingly, the amount that must be re-sourced 

to Hungary is limited to the amount necessary to ensure a U.S. foreign tax credit for $20 of tax paid to Hungary, or $57.14 ($20 tax 

paid to the other Contracting State divided by 35 percent U.S. tax 

rate). When the tax paid to Hungary is credited against the U.S. 

tax on this re-sourced income, there is no residual U.S. tax ($20 

U.S. tax minus $25 tax paid to Hungary, subject to the U.S. limit 

of $20). Thus, in example 2, there is a total of $15 in U.S. tax ($15 

U.S. withholding tax plus $0 residual U.S. tax). Because the tax 

paid to Hungary was $25 and the U.S. tax eligible to be offset by 

credit was $20, there is $5 of excess foreign tax credit available for 

carryover. 

Relationship to other Articles 

By virtue of subparagraph 5(a) of Article 1 (General Scope), Article 23 is not subject to the saving clause of paragraph 4 of Article 

1. Thus, the United States will allow a credit to its citizens and 

residents in accordance with the Article, even if such credit were 

to provide a benefit not available under the Code (such as the resourcing provided by paragraph 3 and subparagraph 4(c)). 

ARTICLE 24 (NON-DISCRIMINATION)

This Article ensures that nationals of a Contracting State, in the 

case of paragraph 1, and residents of a Contracting State, in the 

case of paragraphs 2 through 5, will not be subject, directly or indirectly, to discriminatory taxation in the other Contracting State. 

Not all differences in tax treatment, either as between nationals of 

the two States, or between residents of the two States, are violations of the prohibition against discrimination. Rather, the nondiscrimination obligations of this Article apply only if the nationals 

or residents of the two States are comparably situated. 

Each of the relevant paragraphs of the Article provides that two 

persons that are comparably situated must be treated similarly. Although the actual words differ from paragraph to paragraph (e.g., 

paragraph 1 refers to two nationals ‘‘in the same circumstances,’’ 

paragraph 2 refers to two enterprises ‘‘carrying on the same activities’’ and paragraph 4 refers to two enterprises that are ‘‘similar’’), 

the common underlying premise is that if the difference in treatment is directly related to a tax-relevant difference in the situations of the domestic and foreign persons being compared, that difference is not to be treated as discriminatory (i.e., if one person is 

taxable in a Contracting State on worldwide income and the other 

is not, or tax may be collectible from one person at a later stage, 


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but not from the other, distinctions in treatment would be justified 

under paragraph 1). Other examples of such factors that can lead 

to nondiscriminatory differences in treatment are noted in the discussions of each paragraph. 

The operative paragraphs of the Article also use different language to identify the kinds of differences in taxation treatment that 

will be considered discriminatory. For example, paragraphs 1 and 

4 speak of ‘‘any taxation or any requirement connected therewith 

that is other or more burdensome,’’ while paragraph 2 specifies 

that a tax ‘‘shall not be less favorably levied.’’ Regardless of these 

differences in language, only differences in tax treatment that materially disadvantage the foreign person relative to the domestic 

person are properly the subject of the Article. 

Paragraph 1 

Paragraph 1 provides that a national of one Contracting State 

may not be subject to taxation or connected requirements in the 

other Contracting State that are other or more burdensome than 

the taxes and connected requirements imposed upon a national of 

that other State in the same circumstances. 

The term ‘‘national’’ in relation to a Contracting State is defined 

in subparagraph 1(j) of Article 3 (General Definitions). The term includes both individuals and juridical persons. 

A national of a Contracting State is afforded protection under 

this paragraph even if the national is not a resident of either Contracting State. Thus, a U.S. citizen who is resident in a third country is entitled, under this paragraph, to the same treatment in 

Hungary as a national of Hungary who is in similar circumstances 

(i.e., presumably one who is resident in a third State). 

Paragraph 1 provides that, as noted above, whether or not the 

two persons are both taxable on worldwide income is particularly 

relevant to determining whether they are ‘‘in the same circumstances.’’ United States citizens who are not residents of the 

United States but who are, nevertheless, subject to United States 

tax on their worldwide income are not in the same circumstances 

with respect to United States taxation as citizens of Hungary who 

are not United States residents. Thus, for example, Article 24 

would not entitle a national of Hungary resident in a third country 

to taxation at graduated rates on U.S. source dividends or other investment income that applies to a U.S. citizen resident in the same 

third country. 

Paragraph 2 

Paragraph 2 provides that a Contracting State may not tax a 

permanent establishment of an enterprise of the other Contracting 

State less favorably than an enterprise of that first-mentioned 

State that is carrying on the same activities. 

The fact that a U.S. permanent establishment of an enterprise 

of Hungary is subject to U.S. tax only on income that is attributable to the permanent establishment, while a U.S. corporation 

engaged in the same activities is taxable on its worldwide income 

is not, in itself, a sufficient difference to provide different treatment 

for the permanent establishment. There are cases, however, where 

the two enterprises would not be similarly situated and differences 


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in treatment may be warranted. For instance, it would not be a violation of the non-discrimination protection of paragraph 2 to require the foreign enterprise to provide information in a reasonable 

manner that may be different from the information requirements 

imposed on a resident enterprise, because information may not be 

as readily available to the Internal Revenue Service from a foreign 

as from a domestic enterprise. Similarly, it would not be a violation 

of paragraph 2 to impose penalties on persons who fail to comply 

with such a requirement (see, e.g., sections 874(a) and 882(c)(2)). 

Further, a determination that income and expenses have been attributed or allocated to a permanent establishment in conformity 

with the principles of Article 7 (Business Profits) implies that the 

attribution or allocation was not discriminatory. Section 1446 of 

the Code imposes on any partnership with income that is effectively connected with a U.S. trade or business the obligation to 

withhold tax on amounts allocable to a foreign partner. In the context of the Convention, this obligation applies with respect to a 

share of the partnership income of a partner resident in Hungary, 

and attributable to a U.S. permanent establishment. There is no 

similar obligation with respect to the distributive shares of U.S. 

resident partners. It is understood, however, that this distinction 

is not a form of discrimination within the meaning of paragraph 2 

of the Article. No distinction is made between U.S. and nonU.S. partnerships, since the law requires that partnerships of 

both U.S. and non-U.S. domicile withhold tax in respect of the partnership shares of non-U.S. partners. Furthermore, in distinguishing between U.S. and non-U.S. partners, the requirement to 

withhold on the non-U.S. but not the U.S. partner’s share is not 

discriminatory taxation, but, like other withholding on nonresident 

aliens, is merely a reasonable method for the collection of tax from 

persons who are not continually present in the United States, and 

as to whom it otherwise may be difficult for the United States to 

enforce its tax jurisdiction. If tax has been over-withheld, the partner can, as in other cases of over-withholding, file for a refund. 

Paragraph 3 

Paragraph 3 makes clear that the provisions of paragraphs 1 and 

2 do not obligate a Contracting State to grant to a resident of the 

other Contracting State any tax allowances, reliefs, etc., that it 

grants to its own residents on account of their civil status or family 

responsibilities. Thus, if a sole proprietor who is a resident of Hungary has a permanent establishment in the United States, in assessing income tax on the profits attributable to the permanent establishment, the United States is not obligated to allow to the resident of Hungary the personal allowances for himself and his family 

that he would be permitted to take if the permanent establishment 

were a sole proprietorship owned and operated by a U.S. resident, 

despite the fact that the individual income tax rates would apply. 

Paragraph 4 

Paragraph 4 prohibits discrimination in the allowance of deductions. When an enterprise of a Contracting State pays interest, royalties or other disbursements to a resident of the other Contracting 

State, the first-mentioned Contracting State must allow a deducVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00090 Fmt 6601 Sfmt 6601 E:\HR\OC\ER007.XXX ER007

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tion for those payments in computing the taxable profits of the enterprise as if the payment had been made under the same conditions to a resident of the first-mentioned Contracting State. Paragraph 4, however, does not require a Contracting State to give nonresidents more favorable treatment than it gives to its own residents. Consequently, a Contracting State does not have to allow 

nonresidents a deduction for items that are not deductible under 

its domestic law (for example, expenses of a capital nature). 

The term ‘‘other disbursements’’ is understood to include a reasonable allocation of executive and general administrative expenses, research and development expenses and other expenses incurred for the benefit of a group of related persons that includes 

the person incurring the expense. 

An exception to the rule of paragraph 4 is provided for cases 

where the provisions of paragraph 1 of Article 9 (Associated Enterprises), paragraph 5 of Article 11 (Interest) or para≥graph 4 of Article 12 (Royalties) apply. All of these provisions permit the denial 

of deductions in certain circumstances in respect of transactions between related persons. Neither State is forced to apply the non-discrimination principle in such cases. The exception with respect to 

paragraph 5 of Article 11 would include the denial or deferral of 

certain interest deductions under Code section 163(j). 

Paragraph 4 also provides that any debts of an enterprise of a 

Contracting State to a resident of the other Contracting State are 

deductible in the first-mentioned Contracting State for purposes of 

computing the capital tax of the enterprise under the same conditions as if the debt had been contracted to a resident of the firstmentioned Contracting State. Even though, for general purposes, 

the Convention covers only income taxes, under paragraph 7 of this 

Article, the nondiscrimination provisions apply to all taxes levied 

in both Contracting States, at all levels of government. Thus, this 

provision may be relevant for both States. The other Contracting 

State may have capital taxes and in the United States such taxes 

frequently are imposed by local governments. 

Paragraph 5 

Paragraph 5 requires that a Contracting State not impose other 

or more burdensome taxation or connected requirements on an enterprise of that State that is wholly or partly owned or controlled, 

directly or indirectly, by one or more residents of the other Contracting State than the taxation or connected requirements that it 

imposes on other similar enterprises of that first-mentioned Contracting State. For this purpose it is understood that ‘‘similar’’ refers to similar activities or ownership of the enterprise. 

This rule, like all non-discrimination provisions, does not prohibit 

differing treatment of entities that are in differing circumstances. 

Rather, a protected enterprise is only required to be treated in the 

same manner as other enterprises that, from the point of view of 

the application of the tax law, are in substantially similar circumstances both in law and in fact. The taxation of a distributing 

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owned corporation that is accorded non-recognition treatment 

under sections 337 and 355. 

For the reasons given above in connection with the discussion of 

paragraph 2 of the Article, it is also understood that the provision 

in section 1446 of the Code for withholding of tax on non-U.S. partners does not violate paragraph 5 of the Article. 

It is further understood that the ineligibility of a U.S. corporation with nonresident alien shareholders to make an election to be 

an ‘‘S’’ corporation does not violate paragraph 5 of the Article. If 

a corporation elects to be an S corporation, it is generally not subject to income tax and the shareholders take into account their pro 

rata shares of the corporation’s items of income, loss, deduction or 

credit. (The purpose of the provision is to allow an individual or 

small group of individuals the protections of conducting business in 

corporate form while paying taxes at individual rates as if the business were conducted directly.) A nonresident alien does not pay 

U.S. tax on a net basis, and, thus, does not generally take into account items of loss, deduction or credit. Thus, the S corporation 

provisions do not exclude corporations with nonresident alien 

shareholders because such shareholders are foreign, but only because they are not net-basis taxpayers. Similarly, the provisions exclude corporations with other types of shareholders where the purpose of the provisions cannot be fulfilled or their mechanics implemented. For example, corporations with corporate shareholders are 

excluded because the purpose of the provision to permit individuals 

to conduct a business in corporate form at individual tax rates 

would not be furthered by their inclusion. 

Finally, it is understood that paragraph 5 does not require a 

Contracting State to allow foreign corporations to join in filing a 

consolidated return with a domestic corporation or to allow similar 

benefits between domestic and foreign enterprises. 

Paragraph 6 

Paragraph 6 confirms that no provision of the Article will prevent either Contracting State from imposing the branch profits tax 

described in paragraph 8 of Article 10 (Dividends). 

Paragraph 7 

As noted above, notwithstanding the specification of taxes covered by the Convention in Article 2 (Taxes Covered) for general 

purposes, for purposes of providing nondiscrimination protection 

this Article applies to taxes of every kind and description imposed 

by a Contracting State or a political subdivision or local authority 

thereof. Customs duties are not considered to be taxes for this purpose. 

Relationship to Other Articles 

The saving clause of paragraph 4 of Article 1 (General Scope) 

does not apply to this Article by virtue of the exceptions in paragraph 5(a) of Article 1. Thus, for example, a U.S. citizen who is a 

resident of Hungary may claim benefits in the United States under 

this Article. 

Nationals of a Contracting State may claim the benefits of paragraph 1 regardless of whether they are entitled to benefits under 


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Article 22 (Limitation on Benefits), because that paragraph applies 

to nationals and not residents. They may not claim the benefits of 

the other paragraphs of this Article with respect to an item of income unless they are generally entitled to treaty benefits with respect to that income under a provision of Article 22. 

ARTICLE 25 (MUTUAL AGREEMENT PROCEDURE)

This Article provides the mechanism for taxpayers to bring to the 

attention of competent authorities issues and problems that may 

arise under the Convention. It also provides the authority for cooperation between the competent authorities of the Contracting 

States to resolve disputes and clarify issues that may arise under 

the Convention and to resolve cases of double taxation not provided 

for in the Convention. The competent authorities of the two Contracting States are identified in paragraph 1(g) of Article 3 (General Definitions). 

Paragraph 1 

This paragraph provides that where a resident of a Contracting 

State considers that the actions of one or both Contracting States 

will result in taxation that is not in accordance with the Convention he may present his case to the competent authority of the Contracting State of which he is a resident, or, if his case comes under 

paragraph 1 of Article 24 (Non-Discrimination), to that of the Contracting State of which he is a national. 

Although the most common cases brought under this paragraph 

will involve economic double taxation arising from transfer pricing 

adjustments, the scope of this paragraph is not limited to such 

cases. For example, a taxpayer could request assistance from the 

competent authority if one Contracting State determines that the 

taxpayer has received deferred compensation taxable at source 

under Article 14 (Income from Employment), while the taxpayer 

believes that such income should be treated as a pension that is 

taxable only in his country of residence pursuant to Article 17 

(Pensions and Income From Social Security). 

It is not necessary for a person requesting assistance first to 

have exhausted the remedies provided under the national laws of 

the Contracting States before presenting a case to the competent 

authorities, nor does the fact that the statute of limitations may 

have passed for seeking a refund preclude bringing a case to the 

competent authority. Unlike the OECD Model, no time limit is provided within which a case must be brought. 

Paragraph 2 

Paragraph 2 sets out the framework within which the competent 

authorities will deal with cases brought by taxpayers under paragraph 1. It provides that, if the competent authority of the Contracting State to which the case is presented judges the case to 

have merit, and cannot reach a unilateral solution, it shall seek an 

agreement with the competent authority of the other Contracting 

State pursuant to which taxation not in accordance with the Convention will be avoided. 

Any agreement is to be implemented even if such implementation otherwise would be barred by the statute of limitations or by 


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some other procedural limitation, such as a closing agreement, provided that the competent authority of the other State has received 

notice that such a case exists from the competent authority of the 

Contracting State to which the case was presented within six years 

of the end of the taxable year to which the case relates . Paragraph 

2 does not prevent the application of domestic-law procedural limitations that give effect to the agreement (e.g., a domestic-law requirement that the taxpayer file a return reflecting the agreement 

within one year of the date of the agreement). 

Where the taxpayer has entered a closing agreement (or other 

written settlement) with the United States before bringing a case 

to the competent authorities, the U.S. competent authority will endeavor only to obtain a correlative adjustment from Hungary. See 

Rev. Proc. 2006-54, 2006-49 I.R.B. 1035, § 7.05. Because, as specified in paragraph 2 of Article 1 (General Scope), the Convention 

cannot operate to increase a taxpayer’s liability, temporal or other 

procedural limitations can be overridden only for the purpose of 

making refunds and not to impose additional tax. 

Paragraph 3 

Paragraph 3 authorizes the competent authorities to resolve difficulties or doubts that may arise as to the application or interpretation of the Convention. The competent authorities may, for example, agree to the same allocation of income, deductions, credits or 

allowances between an enterprise in one Contracting State and its 

permanent establishment in the other or between related persons. 

These allocations are to be made in accordance with the arm’s 

length principle underlying Article 7 (Business Profits) and Article 

9 (Associated Enterprises). Agreements reached may also include 

agreement on a methodology for determining an appropriate transfer price, on an acceptable range of results under that methodology, 

or on a common treatment of a taxpayer’s cost sharing arrangement. 

The competent authorities also may agree to settle a variety of 

conflicting applications of the Convention. They may agree to settle 

conflicts regarding the characterization of particular items of income, the characterization of persons, the application of source 

rules to particular items of income, the meaning of a term, or the 

timing of an item of income. 

The competent authorities also may agree as to advance pricing 

arrangements. They also may agree as to the application of the 

provisions of domestic law regarding penalties, fines, and interest 

in a manner consistent with the purposes of the Convention. 

The examples above are not exhaustive, and the competent authorities may reach agreement on other issues if necessary to avoid 

double taxation. For example, the competent authorities may seek 

agreement on a uniform set of standards for the use of exchange 

rates. Agreements reached by the competent authorities under 

paragraph 3 need not conform to the internal law provisions of either Contracting State. 

Finally, paragraph 3 authorizes the competent authorities to consult for the purpose of eliminating double taxation in cases not provided for in the Convention and to resolve any difficulties or doubts 

arising as to the interpretation or application of the Convention. 


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This provision is intended to permit the competent authorities to 

implement the treaty in particular cases in a manner that is consistent with its expressed general purposes. It permits the competent authorities to deal with cases that are within the spirit of 

the provisions but that are not specifically covered. An example of 

such a case might be double taxation arising from a transfer pricing adjustment between two permanent establishments of a thirdcountry resident, one in the United States and one in Hungary. 

Since no resident of a Contracting State is involved in the case, the 

Convention does not apply, but the competent authorities nevertheless may use the authority of this Article to prevent the double taxation of income. 

Paragraph 4 

Paragraph 4 authorizes the competent authorities to increase 

any dollar amounts referred to in the Convention to reflect economic and monetary developments. This refers only to Article 16 

(Entertainers and Sportsmen); Article 19 (Students and Trainees) 

separately instructs the competent authorities to adjust the exemption amount for students and trainees in accordance with specified 

guidelines. The rule under paragraph 4 is intended to operate as 

follows: if, for example, after the Convention has been in force for 

some time, inflation rates have been such as to make the $20,000 

exemption threshold for entertainers unrealistically low in terms of 

the original objectives intended in setting the threshold, the competent authorities may agree to a higher threshold without the 

need for formal amendment to the treaty and ratification by the 

Contracting States. This authority can be exercised, however, only 

to the extent necessary to restore those original objectives. This 

provision can be applied only to the benefit of taxpayers (i.e., only 

to increase thresholds, not to reduce them). 

Paragraph 5 

Paragraph 5 provides that the competent authorities may communicate with each other for the purpose of reaching an agreement, including through a joint commission consisting of themselves or their representatives. This makes clear that the competent authorities of the two Contracting States may communicate 

without going through diplomatic channels. Such communication 

may be in various forms, including, where appropriate, through 

face-to-face meetings of representatives of the competent authorities. 

Treaty termination in relation to competent authority dispute resolution 

A case may be raised by a taxpayer after the Convention has 

been terminated with respect to a year for which a treaty was in 

force. In such a case the ability of the competent authorities to act 

is limited. They may not exchange confidential information, nor 

may they reach a solution that varies from that specified in its law. 

Triangular competent authority solutions 

International tax cases may involve more than two taxing jurisdictions (e.g., transactions among a parent corporation resident in 


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country A and its subsidiaries resident in countries B and C). As 

long as there is a complete network of treaties among the three 

countries, it should be possible, under the full combination of bilateral authorities, for the competent authorities of the three States 

to work together on a three-sided solution. Although country A may 

not be able to give information received under Article 26 (Exchange 

of Information) from country B to the authorities of country C, if 

the competent authorities of the three countries are working together, it should not be a problem for them to arrange for the authorities of country B to give the necessary information directly to 

the tax authorities of country C, as well as to those of country A. 

Each bilateral part of the trilateral solution must, of course, not exceed the scope of the authority of the competent authorities under 

the relevant bilateral treaty. 

Relationship to Other Articles 

This Article is not subject to the saving clause of paragraph 4 of 

Article 1 (General Scope) by virtue of the exceptions in subparagraph 5(a) of that Article. Thus, rules, definitions, procedures, etc. 

that are agreed upon by the competent authorities under this Article may be applied by the United States with respect to its citizens 

and residents even if they differ from the comparable Code provisions. Similarly, as indicated above, U.S. law may be overridden to 

provide refunds of tax to a U.S. citizen or resident under this Article. A person may seek relief under Article 25 regardless of whether he is generally entitled to benefits under Article 22 (Limitation 

on Benefits). As in all other cases, the competent authority is vested with the discretion to decide whether the claim for relief is justified. 

ARTICLE 26 (EXCHANGE OF INFORMATION)

This Article provides for the exchange of information and administrative assistance between the competent authorities of the Contracting States. 

Paragraph 1 

The obligation to obtain and provide information to the other 

Contracting State is set out in Paragraph 1. The information to be 

exchanged is that which is foreseeably relevant for carrying out the 

provisions of the Convention or the domestic laws of the United 

States or of Hungary concerning taxes of every kind applied at the 

national level. This language incorporates the standard of the 

OECD Model. The parties intend for the phrase ‘‘is foreseeably relevant’’ to be interpreted to permit the exchange of information that 

‘‘may be relevant’’ for purposes of 26 U.S.C. Section 7602, which 

authorizes the IRS to examine ‘‘any books, papers, records, or other 

data which may be relevant or material.’’ (emphasis added) In 

United States v. Arthur Young & Co., 465 U.S. 805, 814 (1984), the 

Supreme Court stated that the language ‘‘may be’’ reflects 

Congress’s express intention to allow the IRS to obtain ‘‘items of 

even potential relevance to an ongoing investigation, without reference to its admissibility.’’ (emphasis in original) However, the 

language ‘‘may be’’ would not support a request in which a Contracting State simply asked for information regarding all bank acVerDate Sep 11 2014 23:35 Feb 09, 2016 Jkt 059119 PO 00000 Frm 00096 Fmt 6601 Sfmt 6601 E:\HR\OC\ER007.XXX ER007

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counts maintained by residents of that Contracting State in the 

other Contracting State. Thus, the language of paragraph 1 is intended to provide for exchange of information in tax matters to the 

widest extent possible, while clarifying that Contracting States are 

not at liberty to engage in ‘‘fishing expeditions’’ or otherwise to request information that is unlikely to be relevant to the tax affairs 

of a given taxpayer. 

Exchange of information with respect to each State’s domestic 

law is authorized to the extent that taxation under domestic law 

is not contrary to the Convention. Thus, for example, information 

may be exchanged with respect to a covered tax, even if the transaction to which the information relates is a purely domestic transaction in the requesting State and, therefore, the exchange is not 

made to carry out the Convention. An example of such a case is 

provided in paragraph 8(b) of the OECD Commentary: a company 

resident in one Contracting State and a company resident in the 

other Contracting State transact business between themselves 

through a third-country resident company. Neither Contracting 

State has a treaty with the third State. To enforce their internal 

laws with respect to transactions of their residents with the thirdcountry company (since there is no relevant treaty in force), the 

Contracting States may exchange information regarding the prices 

that their residents paid in their transactions with the third-country resident. 

Paragraph 1 clarifies that information may be exchanged that relates to the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the 

taxes covered by the Convention. Thus, the competent authorities 

may request and provide information for cases under examination 

or criminal investigation, in collection, on appeals, or under prosecution. 

The taxes covered by the Convention for purposes of this Article 

constitute a broader category of taxes than those referred to in Article 2 (Taxes Covered). Exchange of information is authorized with 

respect to taxes of every kind imposed by a Contracting State at 

the national level. Accordingly, information may be exchanged with 

respect to U.S. estate and gift taxes, excise taxes or, with respect 

to Hungary, value added taxes. 

Information exchange is not restricted by paragraph 1 of Article 

1 (General Scope). Accordingly, information may be requested and 

provided under this article with respect to persons who are not 

residents of either Contracting State. For example, if a third-country resident has a permanent establishment in Hungary, and that 

permanent establishment engages in transactions with a U.S. enterprise, the United States could request information with respect 

to that permanent establishment, even though the third-country 

resident is not a resident of either Contracting State. Similarly, if 

a third-country resident maintains a bank account in Hungary, and 

the Internal Revenue Service has reason to believe that funds in 

that account should have been reported for U.S. tax purposes but 

have not been so reported, information can be requested from Hungary with respect to that person’s account, even though that person 

is not the taxpayer under examination. 


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Although the term ‘‘United States’’ does not encompass U.S. possessions for most purposes of the Convention, Section 7651 of the 

Code authorizes the Internal Revenue Service to utilize the provisions of the Internal Revenue Code to obtain information from the 

U.S. possessions pursuant to a proper request made under Article 

26. If necessary to obtain requested information, the Internal Revenue Service could issue and enforce an administrative summons 

to the taxpayer, a tax authority (or a government agency in a U.S. 

possession), or a third party located in a U.S. possession. 

Paragraph 2 

Paragraph 2 provides assurances that any information exchanged will be treated as secret, subject to the same disclosure 

constraints as information obtained under the laws of the requesting State. Information received may be disclosed only to persons, 

including courts and administrative bodies, concerned with the assessment, collection, or administration of, the enforcement or prosecution in respect of, or the determination of the of appeals in relation to, the taxes covered by the Convention. The information must 

be used by these persons in connection with the specified functions. 

Information may also be disclosed to legislative bodies, such as the 

tax-writing committees of Congress and the Government Accountability Office, engaged in the oversight of the preceding activities. 

Information received by these bodies must be for use in the performance of their role in overseeing the administration of U.S. tax 

laws. Information received may be disclosed in public court proceedings or in judicial decisions. 

Paragraph 3 

Paragraph 3 provides that the obligations undertaken in paragraphs 1 to exchange information do not require a Contracting 

State to carry out administrative measures that are at variance 

with the laws or administrative practice of either State. Nor is a 

Contracting State required to supply information not obtainable 

under the laws or administrative practice of either State, or to disclose trade secrets or other information, the disclosure of which 

would be contrary to public policy. 

Thus, a requesting State may be denied information from the 

other State if the information would be obtained pursuant to procedures or measures that are broader than those available in the requesting State. However, the statute of limitations of the Contracting State making the request for information should govern a 

request for information. Thus, the Contracting State of which the 

request is made should attempt to obtain the information even if 

its own statute of limitations has passed. In many cases, relevant 

information will still exist in the business records of the taxpayer 

or a third party, even though it is no longer required to be kept 

for domestic tax purposes. 

While paragraph 3 states conditions under which a Contracting 

State is not obligated to comply with a request from the other Contracting State for information, the requested State is not precluded 

from providing such information, and may, at its discretion, do so 

subject to the limitations of its internal law. 


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Paragraph 4 

Paragraph 4 provides that when information is requested by a 

Contracting State in accordance with this Article, the other Contracting State is obligated to obtain the requested information as 

if the tax in question were the tax of the requested State, even if 

that State has no direct tax interest in the case to which the request relates. In the absence of such a paragraph, some taxpayers 

have argued that subparagraph 3(a) prevents a Contracting State 

from requesting information from a bank or fiduciary that the Contracting State does not need for its own tax purposes. This paragraph clarifies that paragraph 3 does not impose such a restriction 

and that a Contracting State is not limited to providing only the 

information that it already has in its own files. 

Paragraph 5 

Paragraph 5 provides that a Contracting State may not decline 

to provide information because that information is held by financial 

institutions, nominees or persons acting in an agency or fiduciary 

capacity. Thus, paragraph 5 would effectively prevent a Contracting State from relying on paragraph 3 to argue that its domestic bank secrecy laws (or similar legislation relating to disclosure 

of financial information by financial institutions or intermediaries) 

override its obligation to provide information under paragraph 1. 

This paragraph also requires the disclosure of information regarding the beneficial owner of an interest in a person, such as the 

identity of a beneficial owner of bearer shares. 

Paragraph 6 

Paragraph 6 provides that the requesting State may specify the 

form in which information is to be provided (e.g., depositions of witnesses and authenticated copies of original documents). The intention is to ensure that the information may be introduced as evidence in the judicial proceedings of the requesting State. The requested State should, if possible, provide the information in the 

form requested to the same extent that it can obtain information 

in that form under its own laws and administrative practices with 

respect to its own taxes. 

ARTICLE 27 (MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR

POSTS)

This Article confirms that any fiscal privileges to which diplomatic or consular officials are entitled under general provisions of 

international law or under special agreements will apply notwithstanding any provisions to the contrary in the Convention. The 

agreements referred to include any bilateral agreements, such as 

consular conventions, that affect the taxation of diplomats and consular officials and any multilateral agreements dealing with these 

issues, such as the Vienna Convention on Diplomatic Relations and 

the Vienna Convention on Consular Relations. The U.S. generally 

adheres to the latter because its terms are consistent with customary international law. 

The Article does not independently provide any benefits to diplomatic agents and consular officers. Article 19 (Government Service) 


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does so, as do Code section 893 and a number of bilateral and multilateral agreements. In the event that there is a conflict between 

the Convention and international law or such other treaties, under 

which the diplomatic agent or consular official is entitled to greater 

benefits under the latter, the latter laws or agreements shall have 

precedence. Conversely, if the Convention confers a greater benefit 

than another agreement, the affected person could claim the benefit of the tax treaty. 

Pursuant to subparagraph 5(b) of Article 1 (General Scope), the 

saving clause of paragraph 4 of Article 1 does not apply to override 

any benefits of this Article available to an individual who is neither 

a citizen of the United States nor has immigrant status in the 

United States. 

ARTICLE 28 (ENTRY INTO FORCE)

This Article contains the rules for bringing the Convention into 

force and giving effect to its provisions. 

Paragraph 1 

Paragraph 1 provides for the ratification of the Convention by 

both Contracting States according to their constitutional and statutory requirements. Instruments of ratification shall be exchanged 

as soon as possible. 

In the United States, the process leading to ratification and entry 

into force is as follows: Once a treaty has been signed by authorized representatives of the two Contracting States, the Department 

of State sends the treaty to the President who formally transmits 

it to the Senate for its advice and consent to ratification, which requires approval by two-thirds of the Senators present and voting. 

Prior to this vote, however, it generally has been the practice for 

the Senate Committee on Foreign Relations to hold hearings on the 

treaty and make a recommendation regarding its approval to the 

full Senate. Both Government and private sector witnesses may 

testify at these hearings. After the Senate gives its advice and consent to ratification of the treaty, an instrument of ratification is 

drafted for the President’s signature. The President’s signature and 

countersignature by the Secretary of State complete the process in 

the United States. 

Paragraph 2 

Paragraph 2 provides that the Convention will enter into force 

upon the exchange of instruments of ratification. The date on 

which a treaty enters into force is not necessarily the date on 

which its provisions take effect. Paragraph 2, therefore, also contains rules that determine when the provisions of the treaty will 

have effect. 

Under paragraph 2(a), the Convention will have effect with respect to taxes withheld at source (principally dividends, interest 

and royalties) for amounts paid or credited on or after the first day 

of the second month following the date on which the Convention 

enters into force. For example, if instruments of ratification are exchanged on April 25 of a given year, the withhold≥ing rates specified in paragraph 2 of Article 10 (Dividends) would be applicable 

to any dividends paid or credited on or after June 1 of that year. 


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This rule allows the benefits of the withholding reductions to be 

put into effect as soon as possible, without waiting until the following year. The delay of one to two months is required to allow 

sufficient time for withholding agents to be informed about the 

change in withholding rates. If for some reason a withholding 

agent withholds at a higher rate than that provided by the Convention (perhaps because it was not able to re-program its computers 

before the payment is made), a beneficial owner of the income that 

is a resident of the other Contracting State may make a claim for 

refund pursuant to section 1464 of the Code. 

For all other taxes, paragraph 2(b) specifies that the Convention 

will have effect for any taxable period beginning on or after January 1 of the year following entry into force. 

Paragraph 3 

Paragraph 3 provides an exception to the general rule of paragraph 2. Under paragraph 3, if the prior income tax convention between the United States and Hungary would have afforded greater 

relief from tax than this Convention, that prior convention shall, at 

the election of any person that was entitled to benefits under the 

prior convention, continue to have effect in its entirety with respect 

to such person’s taxes until December 31, 2010. 

Thus, if the Convention would otherwise have effect with respect 

to a taxpayer prior to December 31, 2010, the taxpayer may elect 

to extend the benefits of the prior convention until December 31, 

2010. During the period in which the election is in effect, the provisions of the prior convention will continue to apply only insofar as 

they applied before the entry into force of the Convention. If the 

grace period is elected, all of the provisions of the prior convention 

must be applied during the grace period. The taxpayer may not 

apply certain, more favorable provisions of the prior convention 

and, at the same time, apply other, more favorable provisions of 

this Convention. The taxpayer must choose one convention in its 

entirety or the other. 

The prior convention shall terminate on the last date on which 

it has effect with respect to any tax in accordance with the provisions of Article 28. 

Paragraph 4 

Paragraph 4 provides that an individual who was entitled to benefits under Article 18 (Students and Trainees) or Article 17 (Teachers) of the prior convention at the time of the entry into force of 

this Convention is ‘‘grandfathered,’’ and will continue to be entitled 

to the benefits available under the prior convention until such time 

as that individual would cease to be entitled to benefits if the prior 

convention remained in force. 

ARTICLE 29 (TERMINATION)

The Convention is to remain in effect indefinitely, unless terminated by one of the Contracting States in accordance with the provisions of Article 29. The Convention may be terminated by either 

State, provided that at least six months’ prior notice has been 

given through diplomatic channels. Once notice of termination is 

given, the provisions of the Convention with respect to withholding 


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102 

at source will cease to have effect for amounts paid or credited on 

or after the first day of January next following the expiration of six 

month notice period. For other taxes, the Convention will cease to 

have effect as of taxable periods beginning on or after the the first 

day of January next following the expiration of this six month period. 

Article 29 relates only to unilateral termination of the Convention by a Contracting State. Nothing in that Article should be construed as preventing the Contracting States from concluding a new 

bilateral agreement, subject to ratification, that supersedes, 

amends or terminates provisions of the Convention without the sixmonth notification period. 

Customary international law observed by the United States and 

other countries, as reflected in the Vienna Convention on Treaties, 

allows termination by one Contracting State at any time in the 

event of a ‘‘material breach’’ of the agreement by the other Contracting State. 

Æ 


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