b)the term «Isle of Man» means the island of the Isle of Man, including its territorial sea, in accordance with international law;
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c)the terms «a Contracting Party» and «the other Contracting Party» mean Luxembourg or the Isle of Man as the context requires; the term «Contracting Parties» means Luxembourg and the Isle of Man;
\n
d)the term «person» includes an individual, a company and any other body of persons;
\n
e)the term «company» means any body corporate or any entity that is treated as a body corporate for tax purposes;
\n
f)the term «enterprise» applies to the carrying on of any business;
\n
g)the terms «enterprise of a Contracting Party» and «enterprise of the other Contracting Party» mean respectively an enterprise carried on by a resident of a Contracting Party and an enterprise carried on by a resident of the other Contracting Party;
\n
h)the term «international traffic» means any transport by a ship or aircraft operated by an enterprise that has its place of effective management in a Contracting Party, except when the ship or aircraft is operated solely between places in the other Contracting Party;
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1838 LUXEMBOURG
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i)the term «competent authority» means: (i) in Luxembourg, the Minister of Finance or his authorised representative; and (ii) in the Isle of Man, the Assessor of Income Tax or his delegate;
\n
j)the term «national», in relation to a Contracting Party, means: (i) any individual possessing the nationality or citizenship of that Contracting Party; and (ii) any legal person, partnership or association deriving its status as such from the laws in force in that Contracting Party;
\n
k)the term «business» includes the performance of professional services and of other activities of an independent character.
\n
2.As regards the application of the Agreement at any time by a Contracting Party, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that Party for the purposes of the taxes to which the Agreement applies, any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.
\n
Article 4Resident
\n
1.For the purposes of this Agreement, the term «resident of a Contracting Party» means any person who, under the laws of that Party, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that Party and any local authority thereof and any pension fund or pension scheme recognised by that Party. This term, however, does not include any person who is liable to tax in that Party in respect only of income from sources in that Party or capital situated therein.
\n
2.Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting Parties, then his status shall be determined as follows:
\n
a)he shall be deemed to be a resident only of the Party in which he has a permanent home available to him; if he has a permanent home available to him in both Parties, he shall be deemed to be a resident only of the Party with which his personal and economic relations are closer (centre of vital interests);
\n
b)if the Party in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either Party, he shall be deemed to be a resident only of the Party in which he has an habitual abode;
\n
c)if he has an habitual abode in both Parties or in neither of them, he shall be deemed to be a resident only of the Party of which he is a national;
\n
d)if he is a national of both Parties or of neither of them, the competent authorities of the Contracting Parties shall settle the question by mutual agreement.
\n
3.Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting Parties, then it shall be deemed to be a resident only of the Party in which its place of effective management is situated.
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Article 5Permanent establishment
\n
1.For the purposes of this Agreement, the term «permanent establishment» means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
\n
2.The term «permanent establishment» includes especially:
\n
a)a place of management;
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b)a branch;
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c)an office;
\n
d)a factory;
\n
e)a workshop, and
\n
f)a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
\n
3.A building site or construction or installation constitutes a permanent establishment only if it lasts more than 12 months.
\n
4.Notwithstanding the preceding provisions of this Article, the term «permanent establishment» shall be deemed not to include:
\n
a)the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
\n
b)the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
\n
c)the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
\n
d)the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
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1839 LUXEMBOURG
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e)the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
\n
f)the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs
\n
a)to e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
\n
5.Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 6 applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting Party an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that Party in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
\n
6.An enterprise shall not be deemed to have a permanent establishment in a Contracting Party merely because it carries on business in that Party through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
\n
7.The fact that a company which is a resident of a Contracting Party controls or is controlled by a company which is a resident of the other Contracting Party, or which carries on business in that other Party (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
\n
Article 6Income from immovable property
\n
1.Income derived by a resident of a Contracting Party from immovable property (including income from agriculture or forestry) situated in the other Contracting Party may be taxed in that other Party.
\n
2.The term «immovable property» shall have the meaning which it has under the law of the Contracting Party in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships, boats and aircraft shall not be regarded as immovable property.
\n
3.The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
\n
4.The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise.
\n
Article 7Business profits
\n
1.Profits of an enterprise of a Contracting Party shall be taxable only in that Party unless the enterprise carries on business in the other Contracting Party through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits that are attributable to the permanent establishment in accordance with the provisions of paragraph 2 may be taxed in that other Party.
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2.For the purposes of this Article and Article 22, the profits that are attributable in each Contracting Party to the permanent establishment referred to in paragraph 1 are the profits it might be expected to make, in particular in its dealings with other parts of the enterprise, if it were a separate and independent enterprise engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used and risks assumed by the enterprise through the permanent establishment and through the other parts of the enterprise.
\n
3.Where, in accordance with paragraph 2, a Contracting Party adjusts the profits that are attributable to a permanent establishment of an enterprise of one of the Contracting Parties and taxes accordingly profits of the enterprise that have been charged to tax in the other Party, the other Party shall, to the extent necessary to eliminate double taxation on these profits, make an appropriate adjustment to the amount of the tax charged on those profits. In determining such adjustment, the competent authorities of the Contracting Parties shall if necessary consult each other.
\n
4.Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
\n
Article 8Shipping and air transport
\n
1.Profits from the operation of ships or aircraft in international traffic shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
\n
2.If the place of effective management of a shipping enterprise is aboard a ship then it shall be deemed to be situated in the Contracting Party in which the home harbour of the ship is situated, or, if there is no such home harbour, in the Contracting Party of which the operator of the ship is a resident.
\n
3.For the purposes of this Article, profits derived from the operation in international traffic of ships and aircraft include profits:
\n
a)derived from the rental on a bareboat basis of ships and aircraft if operated in international traffic; and 1840 LUXEMBOURG
\n
b)derived from the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used for the transport of goods or merchandise, where such rental profits or profits from such use, maintenance or rental, as the case may be, are incidental to the profits described in paragraph 1.
\n
4.The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
\n
Article 9Associated enterprises
\n
1.
\n
Where
\n
a)an enterprise of a Contracting Party participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting Party, or
\n
b)the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting Party and an enterprise of the other Contracting Party, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
\n
2.Where a Contracting Party includes in the profits of an enterprise of that Party - and taxes accordingly - profits on which an enterprise of the other Contracting Party has been charged to tax in that other Party and the profits so included are profits which would have accrued to the enterprise of the first-mentioned Party if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other Party shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting Parties shall if necessary consult each other.
\n
Article 10Dividends
\n
1.Dividends paid by a company which is a resident of a Contracting Party to a resident of the other Contracting Party may be taxed in that other Party.
\n
2.However, such dividends may also be taxed in the Contracting Party of which the company paying the dividends is a resident and according to the laws of that Party, but if the beneficial owner of the dividends is a resident of the other Contracting Party, the tax so charged shall not exceed:
\n
a)5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 10 per cent of the capital of the company paying the dividends;
\n
b)15 per cent of the gross amount of the dividends in all other cases.
\n
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
\n
3.The term «dividends» as used in this Article means income from shares, «jouissance» shares or «jouissance» rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the Party of which the company making the distribution is a resident, and in the case of Luxembourg the investor’s share of the profit in a commercial, industrial, mining or craft undertaking, paid proportionally to the profits and by virtue of his capital outlay, as well as interest and payments on bonds, where, over and above the fixed rate of interest, a right of assignment is granted for supplementary interest varying according to the unretained earnings.
\n
4.The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting Party, carries on business in the other Contracting Party of which the company paying the dividends is a resident, through a permanent establishment situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
\n
5.Where a company which is a resident of a Contracting Party derives profits or income from the other Contracting Party, that other Party may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Party or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other Party, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other Party.
\n
Article 11Interest
\n
1.Interest arising in a Contracting Party and beneficially owned by a resident of the other Contracting Party shall be taxable only in that other Party.
\n
2.The term «interest» as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor’s profits, and in particular, income 1841 LUXEMBOURG from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. However, the term «interest» shall not include income referred to in Article 10.
\n
Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
\n
3.The provisions of paragraph 1 shall not apply if the beneficial owner of the interest, being a resident of a Contracting Party, carries on business in the other Contracting Party in which the interest arises, through a permanent establishment situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
\n
4.Interest shall be deemed to arise in a Contracting Party when the payer is a resident of that Party. Where, however, the person paying the interest, whether he is a resident of a Contracting Party or not, has in a Contracting Party a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the Contracting Party in which the permanent establishment is situated.
\n
5.Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting Party, due regard being had to the other provisions of this Agreement.
\n
Article 12Royalties
\n
1.Royalties arising in a Contracting Party and beneficially owned by a resident of the other Contracting Party shall be taxable only in that other Party.
\n
2.The term «royalties» as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience.
\n
3.The provisions of paragraph 1 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting Party, carries on business in the other Contracting Party in which the royalties arise, through a permanent establishment situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
\n
4.Royalties shall be deemed to arise in a Contracting Party when the payer is a resident of that Party. Where, however, the person paying the royalties, whether he is a resident of a Contracting Party or not, has in a Contracting Party a permanent establishment in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment, then such royalties shall be deemed to arise in the Contracting Party in which the permanent establishment is situated.
\n
5.Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting Party, due regard being had to the other provisions of this Agreement.
\n
Article 13Capital gains
\n
1.Gains derived by a resident of a Contracting Party from the alienation of immovable property referred to in Article 6 and situated in the other Contracting Party may be taxed in that other Party.
\n
2.Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other Party.
\n
3.Gains from the alienation of ships or aircraft operated in international traffic, or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
\n
4.Gains from the alienation of any property other than that referred to in paragraphs 1, 2 and 3, shall be taxable only in the Contracting Party of which the alienator is a resident.
\n
Article 14Income from employment
\n
1.Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident of a Contracting Party in respect of an employment shall be taxable only in that Party unless the employment is exercised in the other Contracting Party. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other Party.
\n
1842 LUXEMBOURG 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting Party in respect of an employment exercised in the other Contracting Party shall be taxable only in the first-mentioned Party if:
\n
a)the recipient is present in the other Party for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned, and
\n
b)the remuneration is paid by, or on behalf of, an employer who is not a resident of the other Party, and
\n
c)the remuneration is not borne by a permanent establishment which the employer has in the other Party.
\n
3.
\n
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship, aircraft or road vehicle operated in international traffic, may be taxed in the Contracting Party in which the place of effective management of the enterprise is situated.
\n
Article 15Directors’ fees
\n
Directors’ fees and other similar payments derived by a resident of a Contracting Party in his capacity as a member of the board of directors of a company which is a resident of the other Contracting Party may be taxed in that other Party.
\n
Article 16Artistes and sportspersons
\n
1.Notwithstanding the provisions of Articles 7 and 14, income derived by a resident of a Contracting Party as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from his personal activities as such exercised in the other Contracting Party, may be taxed in that other Party.
\n
2.Where income in respect of personal activities exercised by an entertainer or a sportsperson in his capacity as such accrues not to the entertainer or sportsperson himself but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting Party in which the activities of the entertainer or sportsperson are exercised.
\n
3.The provisions of paragraphs 1 and 2 shall not apply to income derived from activities exercised in a Contracting Party by an entertainer or a sportsperson if the visit to that Party is wholly or mainly supported by public funds of one or both of the Contracting Parties or local authorities thereof. In such case, the income shall be taxable only in the Contracting Party of which the entertainer or a sportsperson is a resident.
\n
Article 17Pensions
\n
1.Subject to the provisions of paragraph 2 of Article 18, pensions and other similar remuneration paid to a resident of a Contracting Party shall be taxable only in that Party.
\n
2.Notwithstanding the provisions of paragraph 1, pensions and other payments made under the social security legislation of a Contracting Party shall be taxable only in that Party.
\n
3.Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration arising in a Contracting Party paid to a resident of the other Contracting Party in consideration of past employment shall be taxable only in the first mentioned Party.
\n
Article 18Government service
\n
1.a) Salaries, wages and other similar remuneration paid by a Contracting Party or a local authority thereof to an individual in respect of services rendered to that Party or authority shall be taxable only in that Party.
\n
b)However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting Party if the services are rendered in that Party and the individual is a resident of that Party who: (i) is a national of that Party; or (ii) did not become a resident of that Party solely for the purpose of rendering the services.
\n
2.a) Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration paid by, or out of funds created by, a Contracting Party or a local authority thereof to an individual in respect of services rendered to that Party or authority shall be taxable only in that Party.
\n
b)However, such pensions and other similar remuneration shall be taxable only in the other Contracting Party if the individual is a resident of, and a national of, that Party.
\n
3.The provisions of Articles 14, 15, 16 and 17 shall apply to salaries, wages, pensions, and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting Party or a local authority thereof.
\n
1843 LUXEMBOURG
\n
Article 19Students
\n
Payments which a student or business apprentice who is or was immediately before visiting a Contracting Party a resident of the other Contracting Party and who is present in the first-mentioned Party solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that Party, provided that such payments arise from sources outside that Party.
\n
Article 20Other income
\n
1.Items of income of a resident of a Contracting Party, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that Party.
\n
2.The provisions of paragraph 1 shall not apply to income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting Party, carries on business in the other Contracting Party through a permanent establishment situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
\n
Article 21Capital
\n
1.Capital represented by immovable property referred to in Article 6, owned by a resident of a Contracting Party and situated in the other Contracting Party, may be taxed in that other Party.
\n
2.Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party may be taxed in that other Party.
\n
3.Capital represented by ships and aircraft operated in international traffic, and by movable property pertaining to the operation of such ships and aircraft, shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
\n
4.All other elements of capital of a resident of a Contracting Party shall be taxable only in that Party.
\n
Article 22Elimination of double taxation
\n
1.Subject to the provisions of Luxembourg law regarding the elimination of double taxation which shall not affect the general principle hereof, double taxation shall be eliminated as follows:
\n
a)where a resident of Luxembourg derives income or owns capital which, in accordance with the provisions of this Agreement, may be taxed in the Isle of Man, Luxembourg shall, subject to the provisions of sub-paragraphs b), c) and d), exempt such income or capital from tax, but may, in order to calculate the amount of tax on the remaining income or capital of the resident, apply the same rates of tax as if the income or capital had not been exempted;
\n
b)where a resident of Luxembourg derives income which, in accordance with the provisions of Articles 7, 10, 13(2) and 16 may be taxed in the Isle of Man, Luxembourg shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in the Isle of Man, but only, with respect to Articles 7 and 13(2), if the business profits and the capital gains are not derived from activities in agriculture, industry, infrastructure and tourism in the Isle of Man. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given, which is attributable to such items of income derived from the Isle of Man;
\n
c)where a company which is a resident of Luxembourg derives dividends from Isle of Man sources, Luxembourg shall exempt such dividends from tax, provided that the company which is a resident of Luxembourg holds directly at least 10 per cent of the capital of the company paying the dividends since the beginning of the accounting year and if this company is subject to the Isle of Man tax corresponding to the Luxembourg corporation tax.
\n
The above-mentioned shares in the Isle of Man company are, under the same conditions, exempt from the Luxembourg capital tax. This exemption under this sub-paragraph shall also apply notwithstanding that the Isle of Man company is exempted from tax or taxed at a reduced rate in the Isle of Man and if these dividends are derived out of profits from activities in agriculture, industry, infrastructure or tourism in the Isle of Man;
\n
d)the provisions of sub-paragraph a) shall not apply to income derived or capital owned by a resident of Luxembourg where the Isle of Man applies the provisions of this Agreement to exempt such income or capital from tax or applies the provisions of paragraph 2 of Article 10 to such income.
\n
2.In the case of the Isle of Man, double taxation shall be avoided as follows:
\n
a)When imposing tax on its residents the Isle of Man may include in the basis upon which such taxes are imposed the items of income, which, according to the provisions of this Agreement, may be taxed in Luxembourg.
\n
b)Where a resident of the Isle of Man derives income which, in accordance with the provisions of this Agreement, may be taxed in Luxembourg the Isle of Man shall allow as a deduction from the tax on the income of that 1844 LUXEMBOURG resident, an amount equal to the income tax paid in Luxembourg. Such deduction shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Luxembourg.
\n
c)Where in accordance with any provision of this Agreement income derived by a resident of the Isle of Man is exempt from tax in the Isle of Man, the Isle of Man may nevertheless in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
\n
Article 23Non-discrimination
\n
1.Nationals of a Contracting Party shall not be subjected in the other Contracting Party to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other Party in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting Parties.
\n
2.The taxation on a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party shall not be less favourably levied in that other Party than the taxation levied on enterprises of that other Party carrying on the same activities. This provision shall not be construed as obliging a Contracting Party to grant to residents of the other Contracting Party any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.
\n
3.Except where the provisions of paragraph 1 of Article 9, paragraph 4 of Article 11, or paragraph 4 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting Party to a resident of the other Contracting Party shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned Party. Similarly, any debts of an enterprise of a Contracting Party to a resident of the other Contracting Party shall, for the purpose of determining the taxable capital of such enterprise, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned Party.
\n
4.Enterprises of a Contracting Party, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting Party, shall not be subjected in the first-mentioned Party to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned Party are or may be subjected.
\n
5.The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to taxes of every kind and description.
\n
Article 24Mutual agreement procedure
\n
1.Where a person considers that the actions of one or both of the Contracting Parties result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those Parties, present his case to the competent authority of the Contracting Party of which he is a resident or, if his case comes under paragraph 1 of Article 23, to that of the Contracting Party of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
\n
2.The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting Party, with a view to the avoidance of taxation which is not in accordance with the Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting Parties.
\n
3.The competent authorities of the Contracting Parties shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
\n
4.The competent authorities of the Contracting Parties may communicate with each other directly, including through a joint commission consisting of themselves or their representatives, for the purpose of reaching an agreement in the sense of the preceding paragraphs.
\n
5.
\n
Where,
\n
a)under paragraph 1, a person has presented a case to the competent authority of a Contracting Party on the basis that the actions of one or both of the Contracting Parties have resulted for that person in taxation not in accordance with the provisions of this Agreement, and
\n
b)the competent authorities are unable to reach an agreement to resolve that case pursuant to paragraph 2 within two years from the presentation of the case to the competent authority of the other Contracting Party, 1845 LUXEMBOURG any unresolved issues arising from the case shall be submitted to arbitration if the person so requests. These unresolved issues shall not, however, be submitted to arbitration if a decision on these issues has already been rendered by a court or administrative tribunal of either Party. Unless a person directly affected by the case does not accept the mutual agreement that implements the arbitration decision, that decision shall be binding on both Contracting Parties and shall be implemented notwithstanding any time limits in the domestic laws of these Parties. The competent authorities of the Contracting Parties shall by mutual agreement settle the mode of application of this paragraph.
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Article 25Exchange of information
\n
1.The competent authorities of the Contracting Parties shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting Parties, or of their local authorities, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Articles 1 and 2.
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2.Any information received under paragraph 1 by a Contracting Party shall be treated as secret in the same manner as information obtained under the domestic laws of that Party and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
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3.In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting Party the obligation:
\n
a)to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting Party;
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b)to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting Party;
\n
c)to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public).
\n
4.If information is requested by a Contracting Party in accordance with this Article, the other Contracting Party shall use its information gathering measures to obtain the requested information, even though that other Party may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting Party to decline to supply information solely because it has no domestic interest in such information.
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5.In no case shall the provisions of paragraph 3 be construed to permit a Contracting Party to decline to supply information upon request solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
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Article 26Members of diplomatic missions and consular postS
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Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.
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Article 27Entry into force
\n
1.The Contracting Parties shall notify each other in writing, that the procedures required by its law for the entry into force of this Agreement have been satisfied. The Agreement shall enter into force on the date of receipt of the last notification.
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2.The Agreement shall have effect:
\n
a)in respect of taxes withheld at source, to income derived on or after 1 January of the calendar year next following the year in which the Agreement enters into force;
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b)in respect of other taxes on income, and taxes on capital, to taxes chargeable for any taxable year beginning on or after 1 January of the calendar year next following the year in which the Agreement enters into force.
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Article 28Termination
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1.This Agreement shall remain in force until terminated by a Contracting Party. Either Contracting Party may terminate the Agreement, by giving notice of termination at least six months before the end of any calendar year beginning after the expiration of a period of five years from the date of its entry into force.
\n
1846 LUXEMBOURG 2.
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The Agreement shall cease to have effect:
\n
a)in respect of taxes withheld at source, to income derived on or after 1 January of the calendar year next following the year in which the notice is given;
\n
b)in respect of other taxes on income, and taxes on capital, to taxes chargeable for any taxable year beginning on or after 1 January of the calendar year next following the year in which the notice is given.
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In witness whereof the undersigned, duly authorised thereto, have signed this Agreement.
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Done in duplicate at London this 8th day of April 2013.
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For the Government of the Grand Duchy of Luxembourg (signature) For tthe Gouvernment of the Isle of Man (signature) * PROTOCOL At the moment of the signing of the Agreement between the Grand Duchy of Luxembourg and the Isle of Man for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, both sides have agreed upon the following provisions, which shall form an integral part of the Agreement:
\n
I. With reference to Article 4:
\n
1.A collective investment vehicle which is established in a Contracting Party and that is treated as a body corporate for tax purposes in this Contracting Party shall be considered as a resident of the Contracting Party in which it is established and as the beneficial owner of the income it receives.
\n
2.A collective investment vehicle which is established in a Contracting Party and that is not treated as a body corporate for tax purposes in this Contracting Party shall be considered as an individual who is a resident of the Contracting Party in which it is established and as the beneficial owner of the income it receives. However, this provision shall not prevent the other Contracting Party from taxing its residents if they receive income from such a collective investment vehicle.
\n
II. With Reference to Article 6:
\n
It is understood that, for the purpose of paragraph 3 of Article 6, the term «income derived from the direct use, letting, or use in any other form of immovable property» shall include any income or gains derived from the development of land and property in which the person receiving that income or gain has an interest.
\n
III. With reference to Article 25:
\n
The competent authority of the requesting Party shall provide the following information to the competent authority of the requested Party when making a request for information under the Agreement to demonstrate the foreseeable relevance of the information to the request:
\n
a)the identity of the person under examination or investigation;
\n
b)a statement of the information sought including its nature and the form in which the requesting Party wishes to receive the information from the requested Party;
\n
c)the tax purpose for which the information is sought;
\n
d)grounds for believing that the information requested is held in the requested Party or is in the possession or control of a person within the jurisdiction of the requested Party;
\n
e)to the extent known the name and address of any person believed to be in possession of the requested information;
\n
f)a statement that the request is in conformity with the Agreement;
\n
g)a statement that the requesting Party has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.
\n
IV. With Reference to the Agreement in General:
\n
This Agreement shall not affect the application of the provisions of the Agreement in the form of an exchange of letters on the taxation of savings income of 13th May 2004 and 19th November 2004 between the Grand Duchy of Luxembourg and the Isle of Man.
\n
In witness whereof the undersigned, duly authorised thereto, have signed this Protocol.
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Done in duplicate at London this 8th day of April 2013.
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For the Government of the Grand Duchy of Luxembourg (signature) For the Government of the Isle of Man (signature) 1847 LUXEMBOURG CONVENTION between the Grand Duchy of Luxembourg and Jersey for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital The Government of the Grand Duchy of Luxembourg and the Government of Jersey Desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows:
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Article 1Persons covereD
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This Convention shall apply to persons who are residents of one or both of the Contracting Parties.
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Article 2TAXES COVERED
\n
1.This Convention shall apply to taxes on income and on capital imposed on behalf of a Contracting Party or of its local authorities, irrespective of the manner in which they are levied.
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2.There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
\n
3.The existing taxes to which the Convention shall apply are in particular:
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a)in Luxembourg: (i) the income tax on individuals (l’impôt sur le revenu des personnes physiques); (ii) the corporation tax (l’impôt sur le revenu des collectivités); (iii) the capital tax (l’impôt sur la fortune); and (iv) the communal trade tax (l’impôt commercial communal); (hereinafter referred to as «Luxembourg tax»);
\n
b)in Jersey: (i) the income tax; (hereinafter referred to as «Jersey tax»).
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4.The Convention shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting Parties shall notify each other of any significant changes that have been made in their taxation laws.
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Article 3GENERAL DEFINITIONS
\n
1.
\n
For the purposes of this Convention, unless the context otherwise requires:
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a)the term «Luxembourg» means the Grand Duchy of Luxembourg and, when used in a geographical sense, means the territory of the Grand Duchy of Luxembourg;
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b)the term «Jersey» means, when used in a geographical sense, the Bailiwick of Jersey, including its territorial sea;
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c)the terms «a Party» and «the other Party» mean Jersey or Luxembourg as the context requires; the term «Parties» means Jersey and Luxembourg;
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d)the term «person» includes an individual, a company and any other body of persons;
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e)the term «company» means any body corporate or any entity that is treated as a body corporate for tax purposes;
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1848 LUXEMBOURG
\n
f)the term «enterprise» applies to the carrying on of any business;
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g)the terms «enterprise of a Contracting Party» and «enterprise of the other Contracting Party» mean respectively an enterprise carried on by a resident of a Contracting Party and an enterprise carried on by a resident of the other Contracting Party;
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h)the term «international traffic» means any transport by a ship, aircraft or road vehicle operated by an enterprise that has its place of effective management in a Contracting Party, except when the ship, aircraft or road vehicle is operated solely between places in the other Contracting Party;
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i)the term «competent authority» means: (i) in Luxembourg, the Minister of Finance or his authorised representative; (ii) in Jersey, the Treasury and Resources Minister or his authorised representative;
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j)the term «national», in relation to a Contracting Party, means: (i) any individual possessing the nationality or citizenship of that Contracting Party; and (ii) any legal person, partnership or association deriving its status as such from the laws in force in that Contracting Party;
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k)the term «business» includes the performance of professional services and of other activities of an independent character.
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2.As regards the application of the Convention at any time by a Contracting Party, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that Party for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.
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Article 4RESIDENT
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1.For the purposes of this Convention, the term «resident of a Contracting Party» means any person who, under the laws of that Party, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation or any other criterion of a similar nature, and also includes that Party, any local authority thereof and any pension fund or pension scheme recognised by that Party. This term, however, does not include any person who is liable to tax in that Contracting Party in respect only of income from sources in that Contracting Party or capital situated therein.
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2.Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting Parties, then his status shall be determined as follows:
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a)he shall be deemed to be a resident only of the Party in which he has a permanent home available to him; if he has a permanent home available to him in both Parties, he shall be deemed to be a resident only of the Party with which his personal and economic relations are closer (centre of vital interests);
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b)if the Party in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either Party, he shall be deemed to be a resident only of the Party in which he has an habitual abode;
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c)if he has an habitual abode in both Parties or in neither of them, he shall be deemed to be a resident only of the Party of which he is a national;
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d)if he is a national of both Parties or of neither of them, the competent authorities of the Contracting Parties shall settle the question by mutual agreement.
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3.Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting Parties, then it shall be deemed to be a resident only of the Party in which its place of effective management is situated.
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Article 5PERMANENT ESTABLISHMENT
\n
1.For the purposes of this Convention, the term «permanent establishment» means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
\n
2.The term «permanent establishment» includes especially:
\n
a)a place of management;
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b)a branch;
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c)an office;
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d)a factory;
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e)a workshop, and
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f)a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
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3.A building site or construction or installation or a dredging project constitutes a permanent establishment only if it lasts more than twelve months.
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1849 LUXEMBOURG 4. Notwithstanding the preceding provisions of this Article, the term «permanent establishment» shall be deemed not to include:
\n
a)the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
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b)the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
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c)the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
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d)the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
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e)the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
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f)the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs
\n
a)to e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
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5.Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 6 applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting Party an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that Party in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
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6.An enterprise of a Contracting Party shall not be deemed to have a permanent establishment in the other Contracting Party merely because it carries on business in that Party through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
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7.The fact that a company which is a resident of a Contracting Party controls or is controlled by a company which is a resident of the other Contracting Party, or which carries on business in that other Party (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
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Article 6INCOME FROM IMMOVABLE PROPERTY
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1.Income derived by a resident of a Contracting Party from immovable property (including income from agriculture or forestry) situated in the other Contracting Party may be taxed in that other Party.
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2.The term «immovable property» shall have the meaning which it has under the law of the Contracting Party in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships, boats and aircraft shall not be regarded as immovable property.
\n
3.The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
\n
4.The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise.
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Article 7BUSINESS PROFITS
\n
1.Profits of an enterprise of a Contracting Party shall be taxable only in that Party unless the enterprise carries on business in the other Contracting Party through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits that are attributable to the permanent establishment in accordance with the provisions of paragraph 2 may be taxed in that other Party.
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2.For the purposes of this Article and Article 22, the profits that are attributable in each Contracting Party to the permanent establishment referred to in paragraph 1 are the profits it might be expected to make, in particular in its dealings with other parts of the enterprise, if it were a separate and independent enterprise engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used and risks assumed by the enterprise through the permanent establishment and through the other parts of the enterprise.
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3.Where, in accordance with paragraph 2, a Contracting Party adjusts the profits that are attributable to a permanent establishment of an enterprise of one of the Contracting Parties and taxes accordingly profits of the enterprise that have been charged to tax in the other Party, the other Party shall, to the extent necessary to eliminate double taxation on these profits, make an appropriate adjustment to the amount of the tax charged on those profits. In determining such adjustment, the competent authorities of the Contracting Parties shall if necessary consult each other.
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4.Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
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1850 LUXEMBOURG
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Article 8SHIPPING, INLAND WATERWAYS TRANSPORT AND AIR TRANSPORT
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1.Profits from the operation of ships or aircraft in international traffic shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
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2.Profits from the operation of boats engaged in inland waterways transport shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
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3.If the place of effective management of a shipping enterprise or of an inland waterways transport enterprise is aboard a ship or boat, then it shall be deemed to be situated in the Contracting Party in which the home harbour of the ship or boat is situated, or, if there is no such home harbour, in the Contracting Party of which the operator of the ship or boat is a resident.
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4.The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
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Article 9ASSOCIATED ENTERPRISES
\n
1.
\n
Where
\n
a)an enterprise of a Contracting Party participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting Party, or
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b)the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting Party and an enterprise of the other Contracting Party, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
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2.Where a Contracting Party includes in the profits of an enterprise of that Party, and taxes accordingly, profits on which an enterprise of the other Contracting Party has been charged to tax in that other Party and the profits so included are profits which would have accrued to the enterprise of the first-mentioned Party if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other Party shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting Parties shall if necessary consult each other.
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Article 10DIVIDENDS
\n
1.Dividends paid by a company which is a resident of a Contracting Party to a resident of the other Contracting Party may be taxed in that other Party.
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2.However, such dividends may also be taxed in the Contracting Party of which the company paying the dividends is a resident and according to the laws of that Party, but if the beneficial owner of the dividends is a resident of the other Contracting Party, the tax so charged shall not exceed:
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a)5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 10 per cent of the capital of the company paying the dividends;
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b)15 per cent of the gross amount of the dividends in all other cases.
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This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
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3.The term «dividends» as used in this Article means income from shares, «jouissance» shares or «jouissance» rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the Party of which the company making the distribution is a resident, and in the case of Luxembourg, the investor’s share of the profit in a commercial, industrial, mining or craft undertaking, paid proportionally to the profits and by virtue of his capital outlay, as well as interest and payments on bonds, where, over and above the fixed rate of interest, a right of assignment is granted for supplementary interest varying according to the unretained earnings.
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4.The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting Party, carries on business in the other Contracting Party of which the company paying the dividends is a resident, through a permanent establishment situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
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5.Where a company which is a resident of a Contracting Party derives profits or income from the other Contracting Party, that other Party may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Party or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other Party, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other Party.
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1851 LUXEMBOURG
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Article 11INTEREST
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1.Interest arising in a Contracting Party and beneficially owned by a resident of the other Contracting Party shall be taxable only in that other Party.
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2.The term «interest» as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor’s profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. However, the term «interest» shall not include income referred to in Article 10.
\n
Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
\n
3.The provisions of paragraph 1 shall not apply if the beneficial owner of the interest, being a resident of a Contracting Party, carries on business in the other Contracting Party in which the interest arises, through a permanent establishment situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
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4.Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting Party, due regard being had to the other provisions of this Convention.
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Article 12ROYALTIES
\n
1.Royalties arising in a Contracting Party and beneficially owned by a resident of the other Contracting Party shall be taxable only in that other Party.
\n
2.The term «royalties» as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience.
\n
3.The provisions of paragraph 1 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting Party, carries on business in the other Contracting Party in which the royalties arise through a permanent establishment situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
\n
4.Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting Party, due regard being had to the other provisions of this Convention.
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Article 13CAPITAL GAINS
\n
1.Gains derived by a resident of a Contracting Party from the alienation of immovable property referred to in Article 6 and situated in the other Contracting Party may be taxed in that other Party.
\n
2.Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other Party.
\n
3.Gains from the alienation of ships or aircraft operated in international traffic, boats engaged in inland waterways transport or movable property pertaining to the operation of such ships, aircraft or boats, shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
\n
4.Gains from the alienation of any property other than that referred to in paragraphs 1, 2 and 3 shall be taxable only in the Contracting Party of which the alienator is a resident.
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Article 14INCOME FROM EMPLOYMENT
\n
1.Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident of a Contracting Party in respect of an employment shall be taxable only in that Party unless the employment is exercised in the other Contracting Party. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other Party.
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1852 LUXEMBOURG 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting Party in respect of an employment exercised in the other Contracting Party shall be taxable only in the first-mentioned Party if:
\n
a)the recipient is present in the other Party for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the calendar year concerned, and
\n
b)the remuneration is paid by, or on behalf of, an employer who is not a resident of the other Party, and
\n
c)the remuneration is not borne by a permanent establishment which the employer has in the other Party.
\n
3.Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship, aircraft or road vehicle operated in international traffic, or aboard a boat engaged in inland waterways transport, may be taxed in the Contracting Party in which the place of effective management of the enterprise is situated.
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Article 15DIRECTORS’ FEES
\n
Directors’ fees and other similar payments derived by a resident of a Contracting Party in his capacity as a member of the board of directors of a company which is a resident of the other Contracting Party may be taxed in that other Party.
\n
Article 16ARTISTES AND SPORTSPERSONS
\n
1.Notwithstanding the provisions of Articles 7 and 14, income derived by a resident of a Contracting Party as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from his personal activities as such exercised in the other Contracting Party, may be taxed in that other Party.
\n
2.Where income in respect of personal activities exercised by an entertainer or a sportsperson in his capacity as such accrues not to the entertainer or sportsperson himself but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting Party in which the activities of the entertainer or sportsperson are exercised.
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Article 17PENSIONS
\n
1.Subject to the provisions of paragraph 2 of Article 18, pensions and other similar remuneration paid to a resident of a Contracting Party in consideration of past employment shall be taxable only in that Party.
\n
2.Notwithstanding the provisions of paragraph 1, pensions and other payments made under the social security legislation of a Contracting Party shall be taxable only in that Party.
\n
3.Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration (including lump-sum payments) arising in a Contracting Party and paid to a resident of the other Contracting Party shall be taxable only in the first-mentioned Party, provided that such payments derive from contributions paid to or from provisions made under a pension scheme by the recipient or on his behalf and that these contributions, provisions or the pensions or other similar remuneration have been subjected to tax in the first-mentioned Party under the ordinary rules of its tax laws.
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Article 18GOVERNMENT SERVICE
\n
1.
\n
a)Salaries, wages and other similar remuneration paid by a Contracting Party or a local authority thereof to an individual in respect of services rendered to that Party or authority shall be taxable only in that Party.
\n
b)However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting Party if the services are rendered in that Party and the individual is a resident of that Party who: (i) is a national of that Party; or (ii) did not become a resident of that Party solely for the purpose of rendering the services.
\n
2.a) Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration paid by, or out of funds created by, a Contracting Party or a local authority thereof to an individual in respect of services rendered to that Party or authority shall be taxable only in that Party.
\n
b)However, such pensions and other similar remuneration shall be taxable only in the other Contracting Party if the individual is a resident of, and a national of, that Party.
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3.The provisions of Articles 14, 15 and 17 shall apply to salaries, wages, pensions, and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting Party or a local authority thereof.
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Article 19STUDENTS
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Payments which a student or business apprentice who is or was immediately before visiting a Contracting Party a resident of the other Contracting Party and who is present in the first-mentioned Party solely for the purpose of his 1853 LUXEMBOURG education or training receives for the purpose of his maintenance, education or training shall not be taxed in that Party, provided that such payments arise from sources outside that Contracting Party.
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Article 20OTHER INCOME
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1.Items of income of a resident of a Contracting Party, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that Party.
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2.The provisions of paragraph 1 shall not apply to income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting Party, carries on business in the other Contracting Party through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
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Article 21CAPITAL
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1.Capital represented by immovable property referred to in Article 6, owned by a resident of a Contracting Party and situated in the other Contracting Party, may be taxed in that other Party.
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2.Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party may be taxed in that other Party.
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3.Capital represented by ships and aircraft operated in international traffic and by boats engaged in inland waterways transport, and by movable property pertaining to the operation of such ships, aircraft and boats, shall be taxable only in the Contracting Party in which the place of effective management of the enterprise is situated.
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4.All other elements of capital of a resident of a Contracting Party shall be taxable only in that Party.
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Article 22ELIMINATION OF DOUBLE TAXATION
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1.Subject to the provisions of Luxembourg law regarding the elimination of double taxation which shall not affect the general principle hereof, double taxation shall be eliminated as follows:
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a)Where a resident of Luxembourg derives income or owns capital which, in accordance with the provisions of this Convention, may be taxed in Jersey, Luxembourg shall, subject to the provisions of sub-paragraphs b),
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c)and d), exempt such income or capital from tax, but may, in order to calculate the amount of tax on the remaining income or capital of the resident, apply the same rates of tax as if the income or capital had not been exempted.
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b)Where a resident of Luxembourg derives income which, in accordance with the provisions of Articles 7, 10, 13(2) and 16 may be taxed in Jersey, Luxembourg shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Jersey, but only, with respect to Articles 7 and 13(2), if the business profits and the capital gains are not derived from activities in agriculture, industry, infrastructure and tourism in Jersey. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given, which is attributable to such items of income derived from Jersey.
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c)Where a company which is a resident of Luxembourg derives dividends from Jersey sources, Luxembourg shall exempt such dividends from tax, provided that the company which is a resident of Luxembourg holds directly at least 10 per cent of the capital of the company paying the dividends since the beginning of the accounting year and if this company is subject in Jersey to an income tax corresponding to the Luxembourg corporation tax. The above-mentioned shares in the Jersey company are, under the same conditions, exempt from the Luxembourg capital tax. This exemption under this sub-paragraph shall also apply notwithstanding that the Jersey company is exempted from tax or taxed at a reduced rate in Jersey and if these dividends are derived out of profits from activities in agriculture, industry, infrastructure or tourism in Jersey.
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d)The provisions of sub-paragraph a) shall not apply to income derived or capital owned by a resident of Luxembourg where Jersey applies the provisions of this Convention to exempt such income or capital from tax or applies the provisions of paragraph 2 of Article 10 to such income.
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2.In the case of Jersey, double taxation shall be avoided as follows:
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Subject to the provisions of the laws of Jersey regarding the allowance of a credit against Jersey tax in respect of foreign tax, where, in accordance with the provisions of this Convention:
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a)When imposing tax on its residents Jersey may include in the basis upon which such taxes are imposed the items of income, which, according to the provisions of this Convention, may be taxed in Luxembourg.
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b)Where a resident of Jersey derives income which, in accordance with the provisions of this Convention, may be taxed in Luxembourg, Jersey shall allow as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Luxembourg. Such deduction in either case shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Luxembourg.
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Article 23NON-DISCRIMINATION
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1.Nationals of a Contracting Party shall not be subjected in the other Contracting Party to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other Party in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting Parties.
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2.The taxation on a permanent establishment which an enterprise of a Contracting Party has in the other Contracting Party shall not be less favourably levied in that other Party than the taxation levied on enterprises of that other Party carrying on the same activities.
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3.Except where the provisions of paragraph 1 of Article 9, paragraph 4 of Article 11, or paragraph 4 of Article 12 apply, interest, royalties and other disbursements paid by an enterprise of a Contracting Party to a resident of the other Contracting Party shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned Contracting Party. Similarly, any debts of an enterprise of a Contracting Party to a resident of the other Contracting Party shall, for the purpose of determining the taxable capital of such enterprise, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned Party.
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4.Enterprises of a Contracting Party, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting Party, shall not be subjected in the first-mentioned Party to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned Party are or may be subjected.
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5.The provisions of this Article shall not be construed as obliging a Party to grant to residents of the other Party any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.
\n
6.The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to taxes of every kind and description.
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Article 24MUTUAL AGREEMENT PROCEDURE
\n
1.Where a person considers that the actions of one or both of the Contracting Parties result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those Parties, present his case to the competent authority of the Contracting Party of which he is a resident or, if his case comes under paragraph 1 of Article 23, to that of the Contracting Party of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention.
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2.The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting Party, with a view to the avoidance of taxation which is not in accordance with the Convention.
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An agreement shall be reached within a period of two years after the question was formally raised by the competent authority and the agreement shall be implemented notwithstanding any time limits in the domestic law of the Parties.
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3.The competent authorities of the Contracting Party shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.
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4.The competent authorities of the Contracting Parties may communicate with each other directly, including through a joint commission consisting of themselves or their representatives, for the purpose of reaching an agreement in the sense of the preceding paragraphs.
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5.Where,
\n
a)under paragraph 1, a person has presented a case to the competent authority of a Contracting Party on the basis that the actions of one or both of the Contracting Parties have resulted for that person in taxation not in accordance with the provisions of this Convention, and
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b)the competent authorities are unable to reach an agreement to resolve that case pursuant to paragraph 2 within two years from the presentation of the case to the competent authority of the other Contracting Party, any unresolved issues arising from the case shall be submitted to arbitration if the person so requests. These unresolved issues shall not, however, be submitted to arbitration if a decision on these issues has already been rendered by a court or administrative tribunal of either Party. Unless a person directly affected by the case does not accept the mutual agreement that implements the arbitration decision, that decision shall be binding on both Contracting Parties and shall be implemented notwithstanding any time limits in the domestic laws of these Parties. The competent authorities of the Contracting Parties shall by mutual agreement settle the mode of application of this paragraph.
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Article 25EXCHANGE OF INFORMATION
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1.The competent authorities of the Contracting Parties shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting Parties, or of their local authorities, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Articles 1 and 2.
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2.Any information received under paragraph 1 by a Contracting Party shall be treated as secret in the same manner as information obtained under the domestic laws of that Party and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
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3.In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting Party the obligation:
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a)to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting Party;
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b)to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting Party;
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c)to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public).
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4.If information is requested by a Contracting Party in accordance with this Article, the other Contracting Party shall use its information gathering measures to obtain the requested information, even though that other Party may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting Party to decline to supply information solely because it has no domestic interest in such information.
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5.In no case shall the provisions of paragraph 3 be construed to permit a Contracting Party to decline to supply information upon request solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
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Article 26MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS
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Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.
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Article 27ENTRY INTO FORCE
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1.Each Party shall notify the other Party of the completion of the procedures required by its laws for the bringing into force of this Convention. The Convention shall enter into force on the date of the later of these notifications.
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2.The Convention shall have effect:
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a)in respect of taxes withheld at source, to income derived on or after the first day of January next following the year in which the Convention enters into force;
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b)in respect of other taxes on income, and taxes on capital, to taxes chargeable for any taxation year beginning on or after the first day of January next following the year in which the Convention enters into force.
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Article 28TERMINATION
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1.This Convention shall remain in force until terminated by a Contracting Party. Either Contracting Party may terminate the Convention by giving to the other Party written notice of termination at least six months before the end of any calendar year beginning after the expiration of a period of five years from the date of its entry into force.
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2.The Convention shall cease to have effect:
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a)in respect of taxes withheld at source, to income derived on or after the first day of January next following the year in which the notice is given;
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b)in respect of other taxes on income, and taxes on capital, to taxes chargeable for any taxation year beginning on or after the first day of January next following the year in which the notice is given.
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In witness whereof the undersigned, duly authorised thereto, have signed this Convention.
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Done in duplicate at London this 17th day of April 2013.
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For the Government of the Grand Duchy of Luxembourg (signature) For the Government of Jersey (signature) * 1856 LUXEMBOURG PROTOCOL At the moment of the signing of the Convention between the Grand Duchy of Luxembourg and Jersey for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, both sides have agreed upon the following provisions, which shall form an integral part of the Convention:
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I. With reference to Article 4:
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1.A collective investment vehicle which is established in a Contracting Party and that is treated as a body corporate for tax purposes in this Contracting Party shall be considered as a resident of the Contracting Party in which it is established and as the beneficial owner of the income it receives.
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2.A collective investment vehicle which is established in a Contracting Party and that is not treated as a body corporate for tax purposes in this Contracting Party shall be considered as an individual who is resident of the Contracting Party in which it is established and as the beneficial owner of the income it receives.
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II. With reference to Article 25:
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The competent authority of the requesting Party shall provide the following information to the competent authority of the requested Party when making a request for information under the Convention to demonstrate the foreseeable relevance of the information to the request:
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a)the identity of the person under examination or investigation;
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b)a statement of the information sought including its nature and the form in which the requesting Party wishes to receive the information from the requested Party;
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c)the tax purpose for which the information is sought;
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d)grounds for believing that the information requested is held in the requested Party or is in the possession or control of a person within the jurisdiction of the requested Party;
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e)to the extent known the name and address of any person believed to be in possession of the requested information;
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f)a statement that the requesting Party has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.
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III. With reference to the Convention in general:
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This Convention shall not affect the application of the provisions of the Agreement in the form of an exchange of letters on the taxation of savings income of 13th May 2004 and 19th November 2004 between the Grand Duchy of Luxembourg and Jersey.
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In witness whereof the undersigned, duly authorised thereto, have signed this Protocol.
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Done in duplicate at London this 17th day of April 2013.
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For the Government of the Grand Duchy of Luxembourg (signature) For the Government of Jersey (signature) * 1857 LUXEMBOURG ÉCHANGE DE LETTRES 17 April 2013 Assistant Chief Minister External Relations Cyril Le Marquand House St Helier, Jersey, JE4 8QT Tel.: +44 (0)1534 440401 Ms Béatrice Kirsch Chargé d’Affaires a.i.
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Embassy of the Grand Duchy of Luxembourg London SW1X 8SD Dear Ms Kirsch I have the honour to acknowledge receipt of your Note of 17 April 2013, which reads as follows: «I have the honour to refer to the Convention between the Government of the Grand Duchy of Luxembourg and the Government of Jersey for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to taxes on Income and Capital, signed at London on the 17 April 2013 (the «Convention») and to propose on behalf of the Government of the Grand Duchy of Luxembourg the following understanding:
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It is understood that Jersey source dividend income will be exempt from Luxembourg tax provided the Luxembourg company owns at least 10% of the capital of the Jersey company at the beginning of the accounting year and provided the Jersey company is subject to tax at a rate of at least 10,5%. The rate of 10,5% is based on the current interpretation in Luxembourg that an income tax rate corresponding to that in Luxembourg is 50% of the prevailing corporate tax rate, which is currently 21%. This is publicly stated and cannot be varied. As a result the only Jersey entities in respect of which such an exemption would apply would be those subject to tax at 20%, at present being utility companies and those with property income. Any future reduction in Luxembourg tax to 20% or below would result in Jersey financial services companies which are currently subject to tax at 10% falling within this exemption.
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In that case, or if Luxembourg interprets in a different manner the interpretation of what a corresponding tax to a Luxembourg tax comprises so that dividends paid from companies subject to Jersey tax at a rate lower than 10,5% become eligible for the exemption from Luxembourg tax, then Jersey would agree to exempt dividends flowing from Luxembourg to Jersey in all cases provided the Jersey company owns at least 10% of the capital of the Luxembourg company at the beginning of the accounting year.
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If the foregoing understanding meets with the approval of the Government of Jersey, I have the further honour to propose that this Note and your affirmative Note in reply shall constitute an agreement between our Governments which shall become an integral part of the Convention on the date of entry into force of the Convention.»
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I have the further honour to accept the understanding contained in your Note on behalf of the Government of Jersey. Therefore your Note and this Note shall constitute an agreement between our Governments which shall become an integral part of the Convention on the date of entry into force of the Convention.
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Please accept, Ms Kirsch, the expression of my highest consideration.
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Senator Sir Philip BAILHACHE Assistant Chief Minister External Relations * 1858 LUXEMBOURG Chief Minister Cyril Le Marquand House St Helier, Jersey, JE4 8QT Tel.: +44 (0)1534 440400 Fax: +44 (0)1534 440408 This is to confirm that in accordance with the provisions of Article 18(2) of the States of Jersey Law 2005 and paragraph 1.8.5 of the Strategic Plan 2006-2011 adopted by the States on 28 June 2006 the Council of Ministers have authorised Senator Sir Philip Bailhache, Assistant Chief Minister, to sign on behalf of the Government of Jersey a Double Taxation Agreement with the Government of the Grand Duchy of Luxembourg which agreement when signed will be presented to the States of Jersey, the Island’s Parliament, for formal ratification.
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27th March 2013 For the Council of Ministers Senator Ian GORST Chief Minister 1859 LUXEMBOURG CONVENTION between the Grand Duchy of Luxembourg and the Czech Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital The Grand Duchy of Luxembourg and the Czech Republic, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows:
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Article 1Persons covered
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This Convention shall apply to persons who are residents of one or both of the Contracting States.
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Article 2Taxes covered
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1.This Convention shall apply to taxes on income and on capital imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
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2.There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
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3.The existing taxes to which the Convention shall apply are in particular:
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a)in the Czech Republic: (i) the tax on income of individuals; (ii) the tax on income of legal persons; and (iii) the tax on immovable property; (hereinafter referred to as «Czech tax»);
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b)in the Grand Duchy of Luxembourg: (i) the income tax on individuals; (ii) the corporation tax; (iii) the capital tax; and (iv) the communal trade tax; (hereinafter referred to as «Luxembourg tax»).
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4.The Convention shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in their taxation laws.
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Article 3General definitions
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1.
\n
For the purposes of this Convention, unless the context otherwise requires:
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a)the term «the Czech Republic» means the territory of the Czech Republic over which, under Czech legislation and in accordance with international law, the sovereign rights of the Czech Republic are exercised;
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b)the term «Luxembourg» means the Grand Duchy of Luxembourg and, when used in a geographical sense, means the territory of the Grand Duchy of Luxembourg;
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c)the terms «a Contracting State» and «the other Contracting State» mean Luxembourg or the Czech Republic, as the context requires;
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d)the term «person» includes an individual, a company and any other body of persons;
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e)the term «company» means any body corporate or any entity that is treated as a body corporate for tax purposes;
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f)the term «enterprise» applies to the carrying on of any business;
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g)the terms «enterprise of a Contracting State» and «enterprise of the other Contracting State» mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
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h)the term «national» means: (i) any individual possessing the nationality of a Contracting State; (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State;
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1860 LUXEMBOURG
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i)the term «business» includes also the performance of professional services and of other activities of an independent character;
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j)the term «international traffic» means any transport by a ship, boat, aircraft, road or railway vehicle operated by an enterprise that has its place of effective management in a Contracting State, except when the ship, boat, aircraft, road or railway vehicle is operated solely between places in the other Contracting State;
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k)the term «competent authority» means: (i) in the case of the Czech Republic, the Minister of Finance or his authorised representative; (ii) in the case of Luxembourg, the Minister of Finance or his authorised representative.
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2.As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.
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Article 4Resident
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1.For the purposes of this Convention, the term «resident of a Contracting State» means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of effective management or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof.
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This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein.
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2.Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
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a)he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests);
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b)if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode;
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c)if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national;
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d)if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
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3.Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.
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Article 5Permanent establishment
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1.For the purposes of this Convention, the term «permanent establishment» means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
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2.The term «permanent establishment» includes especially:
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a)a place of management;
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b)a branch;
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c)an office;
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d)a factory;
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e)a workshop, and
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f)a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
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3.The term «permanent establishment» likewise encompasses:
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a)a building site or a construction, assembly or installation project or supervisory activities in connection therewith, but only where such site, project or activities continue for a period of more than twelve months;
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b)the furnishing of services, including consultancy or managerial services, by an enterprise of a Contracting State or through employees or other personnel engaged by the enterprise for such purpose, but only where activities of that nature continue in the territory of the other Contracting State for a period or periods exceeding in the aggregate six months within any twelve month period.
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4.Notwithstanding the preceding provisions of this Article, the term «permanent establishment» shall be deemed not to include:
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a)the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
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b)the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
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1861 LUXEMBOURG
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c)the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
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d)the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
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e)the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
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f)the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs
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a)to e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
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5.Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 6 applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
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6.An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
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7.The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
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Article 6Income from immovable property
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1.Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
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2.The term «immovable property» shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships, boats and aircraft shall not be regarded as immovable property.
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3.The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
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4.The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise.
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Article 7Business profits
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1.The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
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2.Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
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3.In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.
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4.Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
\n
5.No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
\n
6.For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
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1862 LUXEMBOURG 7. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
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Article 8International traffic
\n
1.Profits from the operation of ships, boats, aircraft, road or railway vehicles in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
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2.If the place of effective management of a shipping enterprise is aboard a ship or boat, then it shall be deemed to be situated in the Contracting State in which the home harbour of the ship or boat is situated, or, if there is no such home harbour, in the Contracting State of which the operator of the ship or boat is a resident.
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3.The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
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Article 9Associated enterprises
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1.
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Where
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a)an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
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b)the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
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2.Where a Contracting State includes in the profits of an enterprise of that State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the other Contracting State agrees that the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.
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Article 10DIVIDENDS
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1.Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
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2.However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed:
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a)0 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds for an uninterrupted period of at least one year directly at least 10 per cent of the capital of the company paying the dividends;
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b)10 per cent of the gross amount of the dividends in all other cases.
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This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
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3.The term «dividends» as used in this Article means income from shares, «jouissance» shares or «jouissance» rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as other income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution or the payment is a resident.
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4.The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
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5.Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other State, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
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1863 LUXEMBOURG
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Article 11Interest
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1.Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State shall be taxable only in that other State.
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2.The term «interest» as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor’s profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purposes of this Article. The term «interest» shall not include any item of income which is considered as a dividend under the provisions of paragraph 3 of Article 10.
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3.The provisions of paragraph 1 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
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4.Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the State in which the permanent establishment is situated.
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5.Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
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Article 12Royalties
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1.Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
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2.However, such royalties, except in the case of payments of the kind referred to in sub-paragraph a) of paragraph 3, may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed 10 percent of the gross amount of the royalties.
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3.The term «royalties» as used in this Article means payments of any kind received as a consideration for the use of, or the right to use:
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a)any copyright of literary, artistic or scientific work except of computer software and including cinematograph films, and films or tapes for television or radio broadcasting;
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b)any patent, trade mark, design or model, plan, secret formula or process, computer software, or industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
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4.The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise through a permanent establishment situated therein and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
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5.Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment, then such royalties shall be deemed to arise in the State in which the permanent establishment is situated.
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6.Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
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Article 13Capital gains
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1.Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
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1864 LUXEMBOURG 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
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3.Gains from the alienation of property forming part of the business property of an enterprise and consisting of ships, boats, aircraft, road or railway vehicles operated by such enterprise in international traffic or of movable property pertaining to the operation of such ships, boats, aircraft, road or railway vehicles, shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
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4.Gains from the alienation of any property, other than that referred to in paragraphs 1, 2 and 3, shall be taxable only in the Contracting State of which the alienator is a resident.
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Article 14Income from employment
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1.Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
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2.Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if all the following conditions are met:
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a)the recipient exercises the employment in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned, and
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b)the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
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c)the remuneration is not borne by a permanent establishment which the employer has in the other State.
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3.In the computation of the periods mentioned in sub-paragraph a) of paragraph 2, the following days shall be included:
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a)all days of physical presence including days of arrivals and departures, and
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b)days spent outside the State of activity such as Saturdays and Sundays, national holidays, holidays, and business