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Decree No. 2010-28 Of January 8, 2010, On The Publication Of The Amendment To The Convention Between The Government Of The French Republic And The Government Of The United States Of America For The Avoidance Of Double Taxation And Prevent The Evasi...

Original Language Title: Décret n° 2010-28 du 8 janvier 2010 portant publication de l'avenant à la convention entre le Gouvernement de la République française et le Gouvernement des Etats-Unis d'Amérique en vue d'éviter les doubles impositions et de prévenir l'évasi...

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Summary

Implementation of articles 52 to 55 of the Constitution.

Keywords

AND EUROPEAN AFFAIRS, INTERNATIONAL AGREEMENT, BILATERAL AGREEMENT, FRANCE, UNITED STATES AMERICA , CONVENTION , PROTOCOLE , IMPOSITION , DOUBLE IMPOSITION , FISCALE EVASION , PREVENTION , IMPOT SUR LE REVENU , IR , IMPOT SUR LA FORTUNE , ISF , FRAUDE FISCALE


JORF no.0008 of 10 January 2010 page 528
text No. 11



Decree No. 2010-28 of 8 January 2010 on the publication of the avenor to the agreement between the Government of the French Republic and the Government of the United States of America with a view to avoiding double taxation and preventing tax evasion and tax evasion on income and property taxes, signed in Paris on 31 August 1994 and amended by the avenor of 8 December 2004 (a whole protocol), signed in Paris on 13 January 2009

NOR: MAEJ0931627D ELI: https://www.legifrance.gouv.fr/eli/decret/2010/1/8/MAEJ0931627D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2010/1/8/2010-28/jo/texte


President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Vu la Act No. 2009-1471 of 2 December 2009 authorizing the approval of the actor signed in Paris on 13 January 2009 to the agreement between the Government of the French Republic and the Government of the United States of America with a view to avoiding double taxation and preventing tax evasion and tax evasion on income and property taxes, signed in Paris on 31 August 1994 and amended by the advent of 8 December 2004 (a whole protocol) ;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:

Article 1


The amendment to the agreement between the Government of the French Republic and the Government of the United States of America to avoid double taxation and to prevent tax evasion and tax evasion on income and property taxes, signed in Paris on 31 August 1994 and amended by the advent of 8 December 2004 (a whole protocol), signed in Paris on 13 January 2009, will be published in the Official Journal of the French Republic.

Article 2


The Prime Minister and the Minister for Foreign and European Affairs are responsible, each with respect to him, for the implementation of this decree, which will be published in the Official Journal of the French Republic.

  • Annex



    A V E N A N T


    THE CONVENTION AGAINST THE GOVERNMENT OF THE FRANÇAISE REPUBLIC AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO REVIEW THE IMPOSAL DOUBLES AND PREVENTION OF ASSESSMENT AND FISCAL FRAUDY D'IMPÔTS SUR LE REVENU ET SUR LA FORTUNE, SIGNÉE À PARIS le 31 AOÛT 1994 ET MODIFIÉE PAR THE 8 DECEMBER 2004
    The Government of the French Republic
    and
    The Government of the United States of America,
    Desirous of amending the Convention between the Government of the French Republic and the Government of the United States of America with a view to avoiding double taxation and preventing tax evasion and tax evasion in respect of income and property taxes, signed in Paris on 31 August 1994, and amended by the Avender signed in Washington on 8 December 2004 ("the Convention"), agreed on the following provisions:


    Article I


    1. Paragraph 2 (b) (iii) of Article 4 (Resident) of the Convention is deleted and replaced by the following paragraph:
    "(iii) in the case of France, investment companies with variable capital (SICAV), listed real estate investment companies (SIIC), investment companies with variable capital preponderance (SPPICAV); in the case of the United States, companies, trusts or funds known as " Regulated Investment Company", "Real Estate Investment Trust" and "Real Estate Mortgage Investment Conduit"; and the relevant investment entities »
    2. Paragraphs (b) (iv), (b) (v), and (b) (vi) of Article 4, paragraph 2 (Resident) of the Convention are deleted.
    3. A new paragraph 2 (c) of Article 4 (Resident) of the Convention is added as follows:
    "(c) An income element from the United States paid to a qualified French partnership is deemed to be collected by a resident of France if that income is included in the taxable income of a shareholder, partner or any other member who has the status of a resident of France within the meaning of this Convention. A qualified French partnership means a partnership:
    (i) in France,
    (ii) that did not opt for corporate tax in France,
    (iii) the taxable basis of which is determined at the level of the partnership for taxation purposes in France, and
    (iv) all holders of shares, associates or members are, pursuant to French tax legislation, subject to tax on account of their share in the profits of that partnership. »
    4. A new paragraph 3 is added to Article 4 (Resident) of the Convention:
    “3. For the purposes of this Convention, an element of income, benefit or gain collected through an entity considered to be fiscally transparent under the tax legislation of either of the Contracting States, and that is constituted or organized:
    (a) in either of the Contracting States; or
    (b) in a State that has entered into an agreement containing a provision for exchange of information to prevent tax evasion and fraud with the Contracting State from which income, gain or profit comes from,
    is deemed to be perceived by a resident of a Contracting State to the extent that this income element is treated, by the tax law of that State, as the income, profit or gain of a resident. »
    5. Paragraphs 3 and 4 of Article 4 (Resident) of the Convention are renumbered paragraphs 4 and 5.


    Article II


    Article 10 (Dividends) of the Convention is deleted and replaced by the following article:


    “Article 10
    Dividends


    1. Dividends paid by a corporation that is a resident of a Contracting State to a resident of the other Contracting State shall be taxable in that other State.
    2. However, such dividends may also be taxed in the Contracting State of which the corporation paying the dividends is a resident, and according to the law of that State, but if the beneficial owner is a resident of the other Contracting State, the tax so charged shall not exceed:
    (a) 5 per cent of the gross amount of dividends if the beneficial owner is a corporation that holds:
    (i) directly or indirectly at least 10 per cent of the capital of the corporation that pays the dividends when it is a resident of France;
    (ii) directly at least 10 per cent of voting rights in the corporation that pays dividends when the dividend is a resident of the United States;
    (b) 15 per cent of the gross amount of dividends in all other cases.
    3. Notwithstanding the provisions of paragraph 2, such dividends shall not be taxable in the Contracting State of which the corporation that pays the dividends is a resident if the beneficial owner is a resident corporation of the other Contracting State that has held, directly or indirectly through one or more residents of one of the Contracting States, at least 80 per cent of the capital of the corporation that pays the dividends in the case of France or at least one hundred
    (a) meets the conditions of (i) or (ii) of (c) of Article 30, paragraph 2 (Limitation of benefits of the Convention);
    (b) meets the conditions of (i) and (ii) of (e) of Article 30, paragraph 2, provided that the corporation meets the conditions referred to in paragraph 4 of that Article regarding dividends;
    (c) may benefit from the benefits of the dividend agreement pursuant to paragraph 3 of Article 30; or
    (d) has been the subject of a decision in accordance with the provisions of paragraph 6 of Article 30 under this paragraph.
    4. The provisions of paragraphs 2 and 3 do not affect the taxation of the corporation for profits that are used to pay dividends.
    5. (a) The provisions of paragraph 2 (a) and paragraph 3 do not apply in the case of dividends paid by a corporation of the United States known as " Regulated Investment Company" (RIC) or a "trust" of the United States known as "Real Estate Investment Trust" (REIT) or, by a "variable capital investment company" (SICAV) French, a "listed real estate investment corporation" (SIIC) French or a "variable capital corporation"
    (b) In the case of dividends paid by a corporation of the United States known as the Regulated Investment Company or by a French "variable capital investment corporation" the provisions of paragraph 2 (b) apply. When it comes to dividends paid by a "trust" of the United States referred to as "Real Estate Investment Trust", by a French "listed real estate investment corporation" or a French "removal preponderance investment corporation with variable capital", the provisions of paragraph 2 (b) apply only if:
    (i) the beneficial owner of the dividends is a natural person, a "retirement trust" or any other organization constituted exclusively for the purposes of administering funds or paying pension benefits or social benefits to employees and that is constituted or patronized ("sponsored") by a resident, and that beneficial owner holds not more than 10 percent of the variable rights in the "Real Estate Investment Trust", the "referred real estate investment corporation", or
    (ii) the dividends are paid on the basis of a class of shares that is publicly tradeable and the beneficial owner of the dividends is a person who holds not more than 5 per cent of any class of shares in this "Real Estate Investment Trust", this "listed real estate investment corporation" or in this "exchange capital real estate investment corporation"; or
    (iii) the beneficial owner of the dividends is a person who holds not more than 10 percent of the rights in this "Real Estate Investment Trust", this "listed real estate investment corporation" or in this "exchange capital real estate equity investment corporation" and, in the case of a "Real Estate Investment Trust", provided that it is diversified.
    (c) For the purposes of the provisions of this paragraph, a "Real Estate Investment Trust" is considered to be " diversified" if the value of any real property rights that it holds exceeds 10 percent of the total value of its real property rights. For the purposes of these provisions, seized property is not considered to be a real estate interest. When a "Real Estate Investment Trust" holds an interest in a "partnership", it is deemed to hold directly the real estate rights held by this "partner" up to its rights in the "partner".
    6. (a) The term "dividends" means income derived from shares, shares or benefits of enjoyment, shares of mine, share of founder or other share of beneficiaries with the exception of receivables, as well as income subject to the regime of distributions by the tax legislation of the Contracting State whose distribution company is a resident; and income derived from arrangements, including receivables, that give the right to participate, or refer, to the profits of the The term "dividend" does not include the revenues referred to in Article 16 (Benefits of Attendance);
    (b) The provisions of this section apply where an effective beneficiary of dividends holds deposit certificates attesting to the possession of shares or shares for which dividends are paid, instead of shares or shares themselves.
    7. The provisions of paragraphs 2 to 4 shall not apply where the beneficial owner of the dividends, a resident of a Contracting State, exercises in the other Contracting State whose dividend-paying corporation is a resident, either an industrial or commercial activity through a permanent establishment situated therein or an independent occupation by means of a fixed base located therein, and the dividends are attributable to that permanent establishment or fixed base. In this case, the provisions of Article 7 (Business Benefits) or Article 14 (Independent Professions), as appropriate, are applicable.
    8. (a) A corporation that is a resident of a Contracting State and has a permanent establishment in the other Contracting State, or that is subject to taxation on a net basis in that other State by reason of income elements that are taxable in that other State in accordance with the provisions of Article 6 (Real property income) or paragraph 1 of Article 13 (Capital investment), may apply in that other State to any other tax that is added. However, this additional tax may only be determined on the share of the profits of the corporation attributable to the permanent establishment or on the share of the income elements mentioned in the preceding sentence that are taxable in accordance with the provisions of section 6 or paragraph 1 of section 13, which:
    (i) in respect of the United States, is the "equivalent amount of dividends" ("equivalent amount") of these profits and income elements; for the purposes of these provisions, the term "equivalent amount of dividends" has the meaning assigned to it by U.S. legislation or the provisions that may amend it without its general principle being amended, and
    (ii) with regard to France, constitutes the basis of the deduction to the French source, in accordance with provisions of Article 115 quinquies of the General Tax Code or other similar provisions that would fine or replace those of that article.
    (b) The taxes referred to in (a) shall also apply to profits or taxable income elements in accordance with the provisions of Article 6 (Real property income) or paragraph 1 of Article 13 (Capital leases), which are referred to in (a) and which are attributable to the activities carried out in a Contracting State, by a "partner" or an entity deemed to be fiscally transparent under the tax laws of that Contracting State, for the part attributable to a partnership corporation
    9. The tax referred to in subsection 8 (a) and (b) cannot be determined at a rate exceeding that provided for in paragraph 2 (a). In any case, it cannot be applied to a company that:
    (a) meets the conditions of (i) or (ii) of (c) of Article 30, paragraph 2 (Limitation of benefits of the Convention);
    (b) meets the conditions of (i) and (ii) of (e) of Article 30, paragraph 2, provided that the corporation meets the conditions referred to in paragraph 4 of that Article, with respect to an income element, benefit or gain referred to in paragraph 7;
    (c) may benefit from the benefits of the Convention, pursuant to article 30, paragraph 3, concerning an income element, benefit or gain referred to in paragraph 7; or
    (d) has been the subject of a decision in accordance with the provisions of paragraph 6 of Article 30 under this paragraph.
    10. Subject to the provisions of paragraph 8, where a corporation that is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not collect any tax on dividends paid by the corporation, except to the extent that such dividends are paid to a resident of that other State or to the extent that the dividends are attributable to a permanent establishment or a fixed base located in that other State, or »


    Article III


    1. Paragraph 1 of Article 12 (Repayments) of the Convention is deleted and replaced by the following paragraph:
    “1. Royalties from a Contracting State and whose beneficial owner is a resident of the other Contracting State shall be taxable only in that other State. »
    2. Paragraphs 2, 3, 4 and 5 of Article 12 (Returns) of the Convention are deleted.
    3. New paragraphs 2 and 3 of Article 12 (Repayments) of the Convention are added as follows:
    “2. The term " royalties" used in this section means:
    (a) the remuneration of any kind paid for the use or concession of the use of a copyright on a literary, artistic or scientific work or a neighbouring right (including the rights of reproduction and representation), a film, a recording of sounds or images, a software, a patent, a trademark or a trade, a drawing or a drawing and
    (b) gains derived from the alienation of property or rights referred to in this paragraph, which depend on the productivity, use or subsequent alienation of such property or rights.
    3. The provisions of paragraph 1 shall not apply where the beneficial owner of the royalties, a resident of a Contracting State, exercises in the other Contracting State in which the royalties arise, either an industrial or commercial activity through a permanent establishment located therein or an independent occupation by means of a fixed base located therein, and the royalties are attributable to that permanent establishment or to that fixed base. In this case, the provisions of Article 7 (Business Benefits) or Article 14 (Independent Professions), as appropriate, are applicable. »
    4. Paragraphs 6 and 7 of Article 12 (Returns) of the Convention are listed in paragraphs 4 and 5.


    Article IV


    Paragraph 5 of Article 13, Capital gains, of the Convention is deleted and replaced by the following paragraph:
    « 5. The gains referred to in (b) of section 12, paragraph 2 (Repayments) shall be taxable in accordance with the provisions of section 12. »


    Article V


    The last sentence of article 17, paragraph 1, (Artists and sports) of the Convention is deleted and replaced by the following sentence:
    "However, the provisions of this paragraph do not apply where the amount of gross revenues derived from these activities by that artist or athlete, including expenses that are reimbursed to him or are borne on his behalf, does not exceed ten thousand dollars in the United States or the equivalent in euros for the taxation year in question. »


    Article VI


    The first sentence of paragraph 1 of Article 18 (Pensions) of the Convention is deleted and replaced by the following sentence:
    "Amounts paid under the social security legislation or similar legislation of a Contracting State to a resident of the other Contracting State or to a citizen of the United States, as well as amounts paid under a pension plan and other similar remuneration derived from one of the Contracting States in respect of an employment prior to a resident of the other Contracting State, in the form of a consolidated payment or a first-time payment »


    Article VII


    Article 22 (Other income) of the Convention is deleted and replaced by the following article:


    “Article 22
    Other income


    1. The income elements of a resident of a Contracting State, wherever they arise, of which the resident is the beneficial owner and which are not dealt with in the preceding articles of this Convention, shall be taxable only in that State.
    2. The provisions of paragraph 1 shall not apply to income other than income derived from real property as defined in paragraph 2 of Article 6 (Real property income), where the beneficial owner of such income, resident of a Contracting State, carries on in the other Contracting State, an industrial and commercial activity through a permanent establishment located therein, or an independent occupation by means of a fixed base located therein, In this case, the provisions of Article 7 (Business Benefits) or Article 14 (Independent Professions), as appropriate, are applicable. »


    Article VIII


    1. In article 24 (Elimination of double taxation) of the Convention as contained in the alternation of the United States, it is necessary to renumber, in the English and French versions of this alternation, paragraph 1 in paragraph 2 and paragraph 2 in paragraph 1.
    2. The provisions of (iii) of Article 24, paragraph 1 (Elimination of double taxation) of the Convention, as amended by paragraph 1 of this Article, shall be deleted and replaced by the following provisions:
    "(iii) for income referred to in Article 10 (Dividendes), Article 11 (Interests), Article 13, paragraph 1 (Capital gains), Article 16 (Petition fees) and Article 17 (Artists and sports), to the amount of tax paid in the United States in accordance with the provisions of the Convention; However, this tax credit cannot exceed the amount of the French tax corresponding to these revenues. »
    3. The provisions of (i) of article 24, paragraph 1 (Elimination of double taxation) of the Convention, as amended by paragraph 1 of this article, shall be deleted and replaced by the following provisions:
    "(i) the revenues that consist of dividends paid by a corporation that is a resident of the United States, or interest from the United States within the meaning of paragraph 5 of Article 11 ( Interests) or in royalties from the United States within the meaning of paragraph 4 of Article 12 (Repayments), of which that person is the beneficial owner and which are paid by:
    (aa) the United States, one of their political subdivisions, or one of their local authorities; or
    (b) a person constituted in accordance with the law of a Member State of the United States or District of Columbia, whose principal class of shares or shares is the subject of significant and regular transactions in a stock market regulated in (d) of Article 30, paragraph 7 (Limitation of benefits of the Convention); or
    (cc) a corporation that is a resident of the United States, provided that less than 10 per cent of the voting rights in that corporation are held, directly or indirectly, by the resident of France for the entire portion of the exercise of that corporation prior to the date of payment of income to its beneficiary, and during the previous fiscal year (if any) and provided that less than 50 per cent of those voting rights are held directly or indirectly by the residents of France or
    (dd) a resident of the United States of America, of which not more than 25 per cent of the gross income of the previous taxation period (if it existed) consisted, directly or indirectly, in income not derived from the United States; "
    4. The provisions of (i) of Article 24, paragraph 1 (Elimination of double taxation) of the Convention, as amended by paragraph 1 of this Article, shall be deleted and replaced by the following provisions:
    "(i) If a company that is a resident of France is imposed in that State pursuant to French domestic legislation, depending on a consolidation including the results of subsidiaries that are residents of the United States or stable establishments located in the United States, the provisions of the Convention do not oppose the application of this legislation. »
    5. Paragraph 2 (c) of Article 24 (Elimination of double taxation) of the Convention, as amended by paragraph 1 of this Article, is deleted.


    Article IX


    1. The last sentence of paragraph 2 of article 25 (Non-discrimination) is deleted and replaced by the following sentence:
    "The provisions of this paragraph shall not prevent the application by either Contracting State of the taxes referred to in paragraph 8 of Article 10 (Dividends). »
    2. The first sentence of (a) of Article 25, paragraph 3, is deleted and replaced by the following sentence:
    "Unless the provisions of paragraph 1 of Article 9 (Related Companies), paragraph 6 of Article 11 (Interests) or paragraph 5 of Article 12 (Repayments) are applicable, the interest, royalties and other expenses paid by a business of a Contracting State to a resident of the other Contracting State shall be deductible, for the determination of the taxable profits of that undertaking, in the case of »


    Article X


    Paragraph 5 of Article 26 (Amicable Procedure) is deleted and replaced by the following paragraphs:
    « 5. If, within the framework of an amicable procedure under this article, the competent authorities have endeavoured to find a full agreement without, however, reaching it, the case shall be resolved by arbitration under the conditions defined in paragraph 6 of this article and by any agreed rule or procedure by the Contracting States, if
    (a) tax declarations were filed in at least one of the Contracting States for the relevant taxation years;
    (b) the case is not a particular case which the two competent authorities agree with, before the date on which the arbitration proceedings should have commenced, that it is not prepared for a settlement by arbitration; and
    (c) all persons concerned shall engage in accordance with the provisions of paragraph 6 (d).
    However, an unresolved case must not be referred to arbitration when a decision concerning it has already been rendered by a court or administrative tribunal of one of the Contracting States.
    6. For the purposes of subsection 5 and this subsection, the following rules and definitions apply:
    (a) the term "disciplined person" means the person who submits the case to the competent authority for consideration under this section, as well as any other person, if any, whose tax liability in one of the Contracting States may be directly affected by a friendly agreement arising out of that examination;
    (b) the "opening date", for a particular case, is the first date on which the necessary information to undertake a substantive examination for a friendly agreement was received by the competent authorities;
    (c) arbitration proceedings in respect of the submitted case shall begin at the latest:
    (i) two years from the opening date of this case, unless the two competent authorities have previously agreed on a different date, and
    (ii) on the first date on which the undertaking referred to in (d) was received by the two competent authorities;
    (d) the person(s) concerned and his or her (their) representatives or agents must commit before the commencement of the arbitration proceedings to not communicate to any other person any information received during the arbitration proceedings and originating from one of the Contracting States or the arbitration board, except for the decision of that commission;
    (e) unless a person concerned does not accept the decision of an arbitration board, the arbitration board shall constitute a resolution made by mutual agreement under this article and shall bind the two contracting States only with respect to the case in question; and
    (f) for the purposes of the arbitration procedure within the meaning of paragraph 5 and this paragraph, the members of the arbitration board and their personnel shall be concerned "persons or authorities" to which information may be disclosed under Article 27 (Information Exchange) of the Convention. »


    Article XI


    Article 27 (Information Exchange) of the Convention is deleted and replaced by the following article:


    “Article 27
    Exchange of information


    1. The competent authorities of the Contracting States shall exchange information that may be relevant to the application of the provisions of this Convention or for the administration or application of the domestic law relating to the taxation of any kind or denomination perceived on behalf of the Contracting States, to the extent that the taxation they provide is not contrary to the Convention. The exchange of information is not restricted by sections 1 (Relevant Employees) and 2 (Applicable Taxes).
    2. The information received under this Article by a Contracting State shall be kept secret in the same manner as the information obtained under the domestic law of that State and shall be communicated only to the persons or authorities (including the courts and administrative bodies) concerned by the establishment or collection or administration of the taxes referred to in paragraph 1, by the procedures or prosecutions concerning these taxes, by the decisions on remedies relating to such taxes, or by the control of the above. These individuals or authorities only use this information for these purposes. They may disclose this information in public court hearings or judgments.
    3. In no case shall the provisions of paragraphs 1 and 2 be construed as imposing on a Contracting State the obligation:
    (a) take administrative measures derogating from its legislation and administrative practice or those of the other Contracting State;
    (b) provide information that could not be obtained on the basis of its legislation or in the course of its normal administrative practice or those of the other Contracting State;
    (c) provide information that would reveal a commercial, industrial, professional or commercial secret or information that would be contrary to public order.
    4. (a) If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use the powers available to it to obtain the information requested, even if it does not need it for its own tax purposes. The obligation contained in the previous sentence shall be subject to the limitations provided for in paragraph 3 unless such limitations are likely to prevent a Contracting State from communicating information solely because they do not have an interest in it in the national context.
    (b) If the competent authority of a Contracting State expressly makes the application, the competent authority of the other Contracting State shall, where possible, provide the information provided in this Article in the form of testimony of witnesses or certified copies of original documents not withdrawn (such as books, documents, declarations, records, accounts and records) in the circumstances under which such statements or documents may be obtained in accordance with the law and administrative practice of the other Contracting State.
    (c) Each Contracting State may allow officials of the other Contracting State to intervene in its territory to speak with taxpayers and to read and copy their books and registers, but only after having obtained the agreement of the taxpayer and the competent authority of the first State (who may attend or be represented if it so wishes) and only if the Contracting States agree, by exchange of diplomatic notes, These interventions are not considered audits within the meaning of French domestic legislation.
    5. In no case shall the provisions of paragraph 3 be construed as permitting a Contracting State to refuse to disclose information solely because the information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee or because that information relates to the property rights of a person. »


    Article XII


    Paragraph 5 of Article 28 (Assistance to recovery) of the Convention is deleted and replaced by the following paragraph:
    « 5. The assistance provided for in this article is not granted when it concerns nationals, societies or other entities of the requested State. »


    Article XIII


    1. Paragraph 2 of Article 29 (Discriminate provisions) of the Convention is deleted and replaced by the following paragraph:
    “2. Notwithstanding the provisions of this Convention other than those of paragraph 3, the United States may impose its residents within the meaning of Article 4 (Resident) and its citizens as if the Convention did not exist, and France may impose the entities that have their effective headquarters and are subject to tax in France as if Article 4, paragraph 3, of the Convention did not exist. Notwithstanding the other provisions of the Convention, a former citizen or a former long-term resident of a Contracting State may, for a period of ten years following the loss of that status, be imposed in accordance with the tax legislation of that State relating to the income that originate in that Contracting State, or considered to be such. For this purpose, the term "long-term resident" means, by reference to a Contracting State, any natural person (other than a citizen of that Contracting State) who has the legal status of permanent resident of that Contracting State for a period of not less than eight years in the last fifteen fiscal years. »
    2. The (b) of Article 29, paragraph 3 (Miscellaneous Provisions) of the Convention is deleted and replaced by the following:
    "(b) the benefits granted pursuant to the provisions of Article 18, paragraph 2 (Pensions) and Articles 19 (Public Remunerations), 20 (Profesors and researchers), 21 (Students and interns) and 31 (Diplomatic and consular employees) to natural persons resident of a Contracting State who are not citizens of that State and do not have the status of an immigrant in that State. »
    3. Following the amendments made to article 24 (Elimination of double taxation) of the Convention by paragraph 1 of article VIII of this Advant, the (b) of article 29, paragraph 7 (Miscellaneous provisions) of the Convention, drafted according to the alternation of the United States, shall be deleted in the English and French versions of that alternation and replaced by the following:
    “(b) Taxes on income collected by the Member States and local authorities of the United States on the basis of income derived from the exercise of an independent profession or from an industrial or commercial activity, with the exception of income exempted as a result of the provisions of (i) and (ii) of section 24, paragraph 1 (Elimination of double taxation), are deductible as operating expenses. »
    4. A subsequent new paragraph 9 is added to article 29 (Miscellaneous Provisions) of the Convention:
    “9. Notwithstanding the provisions of Article 19 (Public Remunerations), remuneration, other than pensions, paid by France or one of its local authorities or one of its public legal persons to a natural person for services rendered to France, or to that community or legal person of public law, shall be taxable only in the United States if the services are rendered to the United States and if the natural person is to stay in the United States »


    Article XIV


    Article 30 (Limitation of the benefits of the Convention) of the Convention is deleted and replaced by the following article:


    “Article 30
    Limitation of the benefits of the Convention


    1. A resident of a Contracting State may only benefit from the benefits granted to residents of a Contracting State under this Convention to the extent provided for in this Article.
    2. A resident of a Contracting State may benefit from all benefits provided for in this Convention if that resident is:
    (a) a natural person;
    (b) a Contracting State, or one of its political subdivisions (in the case of the United States) or its local authorities, or one of their legal entities of public law;
    (c) a corporation, if:
    (i) its principal class of shares (and any disproportionate class of shares) is the subject of regular transactions in one or more regulated stock markets, and
    (aa) its principal class of shares is primarily the subject of transactions in a regulated stock market located in the Contracting State of which the corporation is a resident (or, in the case of a resident corporation of France, on a regulated stock market located in the European Union or, in the case of a resident corporation of the United States, on a regulated stock market located in another North American State Party to the Free Trade Agreement; or
    (b) the principal head office of direction and control of that company is located in the Contracting State of which it is a resident; or
    (ii) not less than 50 per cent of the total voting rights and the value of the shares (and not less than 50 per cent of any disproportionate class of shares) of the corporation are held, directly or indirectly, by no more than five companies that may benefit from the benefits of the agreement under (i) of this subparagraph or by persons referred to in (b), provided that, in the case of indirect participation, each holder of intermediate shares is a resident of the Contracting States;
    (d) a person referred to in (ii) of (b) of Article 4, paragraph 2 (Resident) of this Convention, provided that:
    (i) in the case of a "retirement trust" and any other body established in a State and constituted exclusively for the purposes of administering funds or paying benefits in respect of retirement or social benefits to employees, and which is constituted or sponsored ("sponsored") by a person who is a resident of that State within the meaning of Article 4, more than 50 per cent of the beneficiaries, members or participants of the individual are of the persons or
    (ii) the promoter of that person may benefit from the benefits provided by this Convention under this article, or
    (e) a person other than a natural person, if
    (i) for at least half of the days of the taxable year, at least 50 per cent of the total voting rights and the value of the shares (and at least 50 per cent of any disproportionate class of shares) or any other right in that person shall be held, directly or indirectly, by residents of the Contracting State of which that person is a resident who may benefit under this Convention under (a), of (b), of (i) of and
    (ii) less than 50 per cent of the gross income of that person for the taxation year, determined in accordance with the rules of the State of residence of that person, is paid or due, directly or indirectly, to persons who are not resident of any of the Contracting States that may benefit from the benefits of this Convention under (a), (b), (i) of (c) or (d) of this paragraph in the form of debiting payments
    (f) An investment entity referred to in (iii) of (b) of Article 4, paragraph 2 (Resident), provided that more than half of the shares, shares, or rights in that entity are held directly or indirectly by:
    (i) persons resident of the Contracting State whose investment entity is a resident and who may benefit from the benefits of the agreement under (a), (b), (i) of (c) or (d) of this paragraph, and
    (ii) citizens of the United States in the case of an investment entity that is a resident of the United States,
    provided that, in the case of indirect participation, each holder of intermediate shares is a resident of the Contracting State whose investment entity is a resident.
    3. A company that is a resident of a Contracting State may also benefit from the benefits of the Convention if:
    (a) at least 95 per cent of the total voting rights and the value of the shares of that corporation (and at least 50 per cent of any disproportionate class of shares) are held, directly or indirectly, by not more than seven persons who are equivalent beneficiaries; and
    (b) less than 50 per cent of the corporation's gross income for the taxation year, determined in accordance with the rules of the State of residence of the corporation, is paid or due, directly or indirectly, to persons who are not equivalent beneficiaries, in the form of deductible payments for the establishment of the taxes covered by this Convention in the State of residence of that person (with the exception however, of payments made under normal conditions of
    4. (a) A resident of a Contracting State may benefit from the benefits provided by the Convention in respect of an element of income from the other Contracting State, whether or not he or she may benefit from the benefits of the agreement under paragraphs 2 or 3 of this Article, if the resident carries on an industrial or commercial activity in the first State (other than an activity consisting of making or managing investments for his or her own account, unless it is a bank insurance,
    (b) If a resident of a Contracting State derives an element of income from an industrial or commercial activity carried out in the other Contracting State, or receives an element of income having its source in an associated enterprise in the other Contracting State, (a) this paragraph shall apply to that element of income only if the industrial or commercial activity in the first State is important in relation to the industrial or commercial activity carried out in the other Contracting State. The important or not nature of an industrial or commercial activity, as defined in this paragraph, is determined taking into account all the facts and circumstances specific to each case.
    (c) To determine whether a person "executs an effective industrial or commercial activity" in a Contracting State under (a) of this paragraph, the activities carried out by persons related to that person shall be deemed to be carried out by that person. A person is considered to be related to another person if the person holds at least 50 percent of the rights of the other person (or, in the case of a corporation, at least 50 percent of the total voting rights and at least 50 percent of the total value of the shares or rights in the capital of that corporation) or if another person holds, directly or indirectly, at least 50 percent of the rights of each person (or, in the case of a corporation, In any case, a person is deemed to be related to another person if, taking into account all the facts and circumstances of that case, one controls the other or both are controlled by the same person(s).
    5. Notwithstanding the preceding provisions of this Article, where a business of a Contracting State has income from the other Contracting State that is attributable to a permanent establishment that that undertaking has in a third jurisdiction, the tax benefits that would be granted under the other provisions of the Convention shall not apply to such income if the amount of the cumulative taxation actually paid on such income in the first Contracting State and in the third jurisdiction is less than 60 per cent The dividends, interest or royalties to which the provisions of this paragraph apply shall be subject in the other State to a tax not exceeding 15 per cent of their gross amount. Other income to which the provisions of this paragraph apply shall be taxed under the domestic legislation of the other State, notwithstanding any other provision of the Convention. The preceding provisions of this paragraph shall not apply if:
    (a) in the case of royalties, royalties shall be paid in return for the use or concession of the use of intangible property produced or developed by the permanent establishment itself; or
    (b) in the case of other incomes, income from the other Contracting State shall, or shall be miscellaneous, relate to an effective industrial or commercial activity carried out by the permanent establishment in the third jurisdiction (other than an activity consisting of realizing, managing or simply holding investments on behalf of the enterprise, unless it is a banking activity or stock exchange carried out by a bank or registered operator).
    6. A resident of a Contracting State who is not entitled to the benefits referred to in the preceding paragraphs of this Article may nevertheless benefit from the benefits of the Convention if the competent authority of the other Contracting State decides that the establishment, acquisition or maintenance of that person and the conduct of its operations have not had as one of their main objects the obtaining of benefits provided by the Convention. The competent authority of the other State shall consult with the competent authority of the first State before refusing to grant the benefits provided by the Convention in accordance with the provisions of this paragraph.
    7. For the purposes of this section:
    (a) the term "main class of shares" means the corporation's common shares, provided that this class of shares represents the majority of the voting rights and the value of the corporation's shares. If no ordinary class of shares alone represents the majority of the total voting rights and the value of the shares of the corporation, the "main class of shares" means the class(s) of shares whose cumulative amount represents the majority of the total voting rights and the value of the shares of the corporation;
    (b) the term "disproportionate class of shares" means any class of shares of a resident corporation of one of the States that allows the shareholder who holds them to benefit from a disproportionately high interest, through dividend payments, redemptions or otherwise, to the profits generated in the other State by the particular activities or assets of the corporation;
    (c) the term "actions" includes the corresponding deposit certificates;
    (d) the term "regulated stock market" means:
    (i) the automated rating system (NASDAQ) held by the U.S. National Exchange Officers Association, and any stock exchanges registered with the United States Stock Exchange Commission (Securities and Exchange Commission) as a national stock exchange within the meaning of the Securities Exchange Act of 1934;
    (ii) the French exchanges controlled by the Autorité des marchés financiers;
    (iii) Scholarships in Amsterdam, Brussels, Frankfurt, Hamburg, London, Lisbon, Madrid, Milan, Stockholm, Sydney, Tokyo, Toronto and the Swiss Stock Exchange; and
    (iv) any other scholarships agreed by the competent authorities of the Contracting States;
    (e) the principal head office of direction and control of a company is located in the State of which it is resident only if its executives and executives exercise in that State more than in any other of the day-to-day responsibilities for strategic, financial and operational decision-making for the company (including for its direct and indirect subsidiaries) and that staff carry out in that State more than in any other day-to-day activities necessary for the preparation and decision-making of these
    (f) the term "equivalent beneficiary" means a resident of a Member State of the European Union or a State Party to the North American Free Trade Agreement, but only if that resident;
    (i) (a) would be entitled to all the benefits of a general agreement to avoid double taxation between a Member State of the European Union or any State Party to the North American Free Trade Agreement and the Contracting State to which it is requested to grant the benefits of this Convention in accordance with provisions similar to that of (a), (b), (i) of (c) or (d) of paragraph 2 and
    (b) in respect of the insurance premiums and incomes referred to in Articles 10 (Dividends), 11 ( Interests) or 12 (Repayments) of this Convention, may, under this Convention, be entitled to an exemption from excise rights on such premiums or to a tax rate at least as low as the rate applicable under this Convention to the income element concerned; or
    (ii) is a resident of a Contracting State that may benefit from the benefits of this Convention under the provisions of (a), (b), (i) of (c) or (d) of paragraph 2 of this Article.
    For the purposes of paragraph 3 of Article 10 (Dividendes), to determine whether a person holding shares or shares, directly or indirectly, in the corporation that requests to benefit from this Convention is an equivalent beneficiary, that person is considered to have the same voting rights in the case of a resident corporation of the United States, or the same interest in capital in the case of a resident corporation of France, in the corporation that pays
    (g) in respect of dividends, interest or royalties from France and of which the beneficial owner is a corporation that is a resident of the United States, a corporation that is a resident of a Member State of the European Union shall be deemed to satisfy the terms of (i) (b) for the purpose of determining whether that resident corporation of the United States may benefit from the benefits of the agreement under this paragraph when a payment of dividends, interest or »


    Article XV


    Paragraph 1 of Article 32 (Implementation Measures) of the Convention is deleted and replaced by the following paragraph:
    “1. The competent authorities of the Contracting States may prescribe, jointly or separately, rules and procedures for the application of the provisions of this Convention. »


    Article XVI


    1. Each Contracting State shall notify the other of the fulfilment of the procedures required by its Constitution and its legislation for the implementation of this Agreement. The latter will enter into force on the day of receipt of the last notification.
    2. The provisions of this Advant shall apply:
    (a) in respect of taxes collected by deduction to the source, the amounts paid as of January 1 of the year in which the Avenor entered into force;
    (b) in respect of other taxes, at taxation periods beginning on the first January of the year following the year in which the Avenor entered into force.
    3. Notwithstanding the provisions of paragraph 2, the provisions of paragraphs 5 and 6 of Article 26 (Amicable procedure) shall apply:
    (a) cases submitted to the competent authorities on the date of entry into force of this Advant, and
    (b) cases submitted after that date,
    and the opening date of a case referred to in (a) of this subsection is the date on which this Advant comes into force.
    In faith, the undersigned, duly authorized to do so, have signed this Avenant.
    Done in duplicate in Paris on 13 January 2009, in French and English, both texts being equally authentic.


    For the Government
    of the French Republic:
    Christine Lagarde
    Minister of Economy,
    Industry and Employment
    For the Government
    of the United States of America:
    Craig R. Stapleton
    Ambassador
    of the United States of America



    AACCORD PROTOCOLE


    When signing this day of the Avender amending the Convention between the Government of the French Republic and the Government of the United States of America with a view to avoiding double taxation and preventing tax evasion and fraud in respect of income and capital taxes, signed in Paris on 31 August 1994, as amended by the Avender on 8 December 2004, the undersigned agreed to define the terms and conditions of application of paragraphs 5
    In all cases for which the competent authorities have endeavoured, without however, to find an agreement within the meaning of Article 26 concerning the application of the Convention, an arbitration between the parties shall be used to settle the case, unless the competent authorities agree that the particular case does not lend itself to a settlement by arbitration. If an arbitration procedure referred to in paragraph 5 of Article 26 is initiated (the Procedure), the following rules and procedures apply.
    (a) The Procedure shall be carried out in accordance with the prescribed terms and conditions set out in paragraphs 5 and 6 of Article 26 and in accordance with the rules and procedures referred to in this Article, which may be supplemented by any other rules and procedures agreed upon by the competent authorities in accordance with the provisions of (q) below.
    (b) The decision taken by an adjudication board in the course of the proceedings concerns only the determination of the amount of income, expenses or taxes attributable to the Contracting States.
    (c) Notwithstanding the initiation of the Procedure, the competent authorities may find a friendly agreement to resolve a case and terminate the Procedure. Similarly, a data subject may at any time withdraw a request made to the competent authorities to initiate a friendly procedure (and thus terminate the Procedure),
    (d) The conditions set out in (d) of paragraph 6 of Article 26 shall be met when each of the competent authorities has received from each of the persons concerned a declaration under which the person and any person acting on his or her behalf undertake not to communicate to any other person information received during the proceedings and from any of the Contracting States or the Arbitration Board, except for the decision taken at the end of this Procedure. A person legally authorized to engage any other person concerned on this issue may do so in the form of a full statement.
    (e) Each Contracting State shall have a period of 90 days from the date of commencement of the Procedure to send a written communication to the other Contracting State in order to designate a member of the Arbitration Board. Designated members shall not be agents of the tax administration of the Contracting State that designates them. Within 60 days of the date of the second of these communications, the two members appointed by the Contracting States shall designate a third member, who shall preside over the commission. If the members designated by the Contracting States fail to agree on the third member, they shall be considered revoked and each Contracting State shall designate a new member of the commission within 30 days of the revocation of the members of origin. The competent authorities draw up a non-exhaustive list of familiar individuals with international tax issues that would be able to preside over the commission. In no case shall the designated President be a citizen of one of the Contracting States.
    (f) The Arbitration Board shall adopt all procedures necessary for the conduct of its activities, provided that such procedures are not incompatible with any provision of Article 26.
    (g) Each Contracting State is authorized to submit, within 60 days of the designation of the Chairman of the Arbitration Board, a Motion for a Resolution describing the proposed allocation for the specific amounts of income, expenses or taxes concerned, as well as a Position Paper in support of the Arbitration Board for consideration. Copies of the Motion for a Resolution and the Position Note (" Position paper") are provided by the Commission to the other Contracting State on the date on which the latter of these documents are submitted to the Commission. If only a Contracting State transmits a Motion for a resolution within the time limits, it shall be deemed to constitute the decision of the Commission in the case concerned and the Procedure shall be closed. Each Contracting State may, if it wishes, transmit a Reply to the Commission within 120 days of the designation of its Chairperson, in order to address any matter raised by the Motion for a Resolution or the Position Note (" Position paper") submitted by the other Contracting State. Other information may be transmitted to the arbitration board only upon request, and copies of the request of the commission and the response of the Contracting State are provided to the other Contracting State on the date of transmission of the request or reply. With the exception of logistical matters such as those referred to in (l), (n) and (o) below, all communications addressed by the Contracting States to the Arbitration Board, and vice versa, shall take the form of written communications between the competent authorities and the Chairperson of the Board.
    (h) A person who submits the case to the competent authority of a Contracting State is authorized to transmit, within 90 days of the designation of the Chairperson of that Commission, a position note ("Position paper") for consideration by the Arbitration Board. Copies of this position note ("Position paper") are provided by the commission to the Contracting States on the date on which the last of the documents transmitted by the Contracting States are submitted to the commission.
    (i) The Board of Arbitration shall notify the Contracting States in writing within six months of the designation of its President. The Commission adopts as a decision one of the Draft Resolutions transmitted by the Contracting States.
    (j) The decision of the Board of Arbitration concerns only the application of the Convention to a particular case and binds the Contracting States. The commission's decision is not motivated. It is not a precedent.
    (k) Pursuant to the provisions of paragraph 6 (e) of Article 26, the decision of an arbitration board constitutes a resolution by amicable agreement under Article 26. Each data subject shall, within 30 days of receipt of the decision of the commission addressed by the competent authority to which the case was first submitted, inform the competent authority whether it accepts the decision of the commission. If the case is the subject of judicial proceedings, each person involved in the proceedings must also inform, within the same period, the competent court that it accepts the decision of the commission as amicable solution and withdraw from the current judicial proceedings the points resolved by the arbitration procedure. If a data subject does not inform the relevant authority and court within that same period, the commission's decision is considered not accepted in this case. If the commission's decision is not accepted, then the case cannot be the subject of a procedure.
    (l) Any meeting of the Arbitration Board shall be held in premises made available by the Contracting State of which the competent authority has commenced amicable proceedings in the case concerned.
    (m) The treatment of any penalty or interest related to the case shall be outside the scope of the Procedure and shall be determined in accordance with the provisions of the domestic legislation of the Contracting State concerned.
    (n) No information concerning the Procedure (including the decision of the commission) may be communicated by members of the arbitration board, its personnel or any of the competent authorities, except in cases authorized by the Convention and by the national legislation of the Contracting States. In addition, all documents prepared during or related to the Procedure are considered to be information exchanged between the Contracting States. All members of the board of arbitration and their personnel shall, in the declarations sent to each of the Contracting States to confirm their designation as members of the board of arbitration, undertake to comply with the confidentiality and non-disclosure provisions of Article 27 (change of information) of the Convention and the applicable national legislation of the Contracting States. In the event of a conflict between these provisions, the most restrictive conditions apply.
    (o) The fees and costs shall be borne equally by the Contracting States. Generally, the fees of the members of the Board of Arbitration are fixed to $2,000 (two thousand dollars) per day, or to the equivalent amount in euros, subject to change by the competent authorities. Generally, the costs of the members of the Board of Arbitration shall be determined in accordance with the International Centre for Settlement of Investment Disputes ("IRDI") applicable to arbitrators (in force on the date of commencement of the Procedure), subject to change by the competent authorities. The fees paid for language translation services are also paid equally by the contracting States. The premises and resources allocated to meetings, financial management, other logistical support elements and the general administrative coordination of the Procedure shall be made available, at its expense, by the contracting State whose competent authority has initiated amicable procedure in the case concerned. All other costs are borne by the Contracting State which has incurred them.
    (p) For the purposes of the provisions of paragraphs 5 and 6 of Article 26 and this paragraph, each competent authority shall confirm in writing to the other competent authority and to the person(s) concerned the date on which it receives the information necessary to seriously consider a friendly agreement. This information shall be transmitted to the competent authorities in accordance with the internal rules and procedures applicable in each of the Contracting States. However, this information is not considered to have been received until the two competent authorities have received copies of all documents transmitted to each of the Contracting States by the person(s) involved in the friendly procedure.
    (q) The competent authorities of the Contracting States may, as appropriate, supplement the above rules and procedures in order to pursue more effectively the objective of eliminating double taxation pursued by paragraph 5 of Article 26.
    This Protocol will enter into force on the date of entry into force of the Avenant signed in Paris on 13 January 2009 amending the Convention between the Government of the French Republic and the Government of the United States of America with a view to avoiding double taxation and preventing tax evasion and tax evasion in respect of income and property taxes, signed in Paris on 31 August 1994, as amended by the Avenant signed on 8 December 2004.
    In the belief that the undersigned, duly authorized to do so, have signed this Protocol.
    Done in duplicate in Paris on 13 January 2009, in French and English, both texts being equally authentic.


    For the Government
    of the French Republic:
    Christine Lagarde
    Minister of Economy,
    Industry and Employment
    For the Government
    of the United States of America:
    Craig R. Stapleton
    Ambassador
    of the United States of America


Done in Paris, January 8, 2010.


Nicolas Sarkozy


By the President of the Republic:


The Prime Minister,

François Fillon

Minister for Foreign Affairs

and European,

Bernard Kouchner

(1) This Agreement entered into force on 23 December 2009.
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