Key Benefits:
PT
MOTION FOR RESOLUTION No. 22 /X
Considering that the Council Directive No 2003 /48/CE of June 3, 2003,
on the taxation of income from savings in the form of interest (which aims to
enable those income, paid in a Member State of the European Union to
actual beneficiaries who are natural persons with a tax residence in another
Member State, shall be subject to effective taxation in accordance with
legislation of the latter Member State) establishes that the implementation of the provisions
internal transposition depends on the conclusion of agreements or other arrangements that
define that all dependent territories or relevant associates of states-
Members adopt equivalent or identical measures to those of the said Directive;
Considering that the Agreement concluded with Guernsey devotes the normative framework to
that this territory adopts the said measures, particularly those relating to taxation
by retention by the paying agent on interest payments to natural persons
residents in Portuguese territory with a revenue allocation, and which constitutes a
essential element for the achievement of the objectives of Directive No 2003 /48/CE;
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following motion for a resolution:
Approves the Agreement between the Portuguese Republic and the Dependent Territory of the Crown
British from Guernsey, by Exchange of Letters, respectively from June 22, 2004 and
of November 19, 2004, Relative to the Taxation of Savings Income and the
Respective Provisional Application, the text of which, Appendix 1 and its respective Annex, in the versions
authenticated in the Portuguese and English languages, if they publish in attachment.
Seen and approved in Council of Ministers of July 22, 2005
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
AGREEMENT
IN THE FORM OF AN EXCHANGE OF LETTERS
ON THE TAXATION OF INCOME FROM SAVINGS AND THE
RESPECTIVE PROVISIONAL APPLICATION
A. Charter of the Portuguese Republic
Excelent Lord,
I have the honour to refer to the texts, respectively, of the " Proposal for a model of
agreement between Guernsey, the Isle of Man and Jersey and each of the EU Member States
which will apply the automatic exchange of information "and the" Proposal for a model agreement
between Guernsey, the Isle of Man and Jersey and each of the EU Member States that will
apply the withholding tax in the transition period ", which resulted from the negotiations of
an Agreement on Taxation of Savings with the Authorities of the Islands, and were
apensas, respectively as Annex I and Annex II, to the outcome of the proceedings of the
High Level Group of the Council of Ministers of the European Union of March 12
(Doc. 7408/04 FISC 58).
In the face of the said texts, I have the honour to propose V. Ex. the " Agreement concerning the
taxation of income from savings " listed in Appendix 1 to this letter, and the
mutual commitment to ultimarms with the greatest possible brevity
internal constitutional formalities for the entry into force of this Agreement and of
we proceed without delay to the reciprocal notification that such formalities are
completed.
Pending the completion of the internal tramites and the entry into force of the present
"Agreement relating to the taxation of savings income", I have the honour to propose to
V. Former Portugal and Guernsey to apply the present Agreement provisionally, having
into account the framework of the respective internal constitutional ordinances, to be
of January 1, 2005, or of the date of application of Council Directive 2003 /48/CE
of June 3, 2003 on the taxation of income from savings in the form of
interest, worth the most late of the dates.
If the above is acceptable by the Government of V. Ex. th, I have the honour to propose that the
this letter and your confirmation shall jointly constitute an Agreement between
Portugal and Guernsey.
Want to accept, Excellent Lord, the protests of our highest regard,
By the Portuguese Republic
Minister of State and Finance
Made in Lisbon,
B. Letter from Guernsey
Excelent Lord,
I have the honour to acknowledge receipt of your letter of Your Honour dated today, of the
following content:
" Excellent Lord,
I have the honour to refer to the texts, respectively, of the " Model Proposal
of agreement between Guernsey, the Isle of Man and Jersey and each of the States-
EU members who will apply the automatic exchange of information "and the" Proposal
of model agreement between Guernsey, the Isle of Man and Jersey and each of the
EU Member States that will apply the withholding tax in the period of
transition ", which resulted from the negotiations of an Agreement on Taxation of the
Savings with the Authorities of the Islands, and were apensed, respectively as
Annex I and Annex II, to the outcome of the proceedings of the High-Level Group of the
Council of Ministers of the European Union of March 12 (Doc. 7408/04
FISC 58).
In the face of the said texts, I have the honour to propose V. Ex. the " Agreement concerning
to the taxation of savings income " constant from Appendix 1 to the present
letter, and the mutual commitment to ultimarms with the greatest possible brevity as
our internal constitutional formalities for the entry into force of the present
Agreement and to proceed without delay to the reciprocal notification that such
formalities are completed.
Pending the completion of the internal tramites and the entry into force of the
present "Agreement relating to the taxation of savings income", I have the
honour to propose to V. Ex that Portugal and Guernsey apply the present Agreement
provisionally, taking into account the framework of the respective ordinances
internal constitutional, as of January 1, 2005, or the date of application
of the Council Directive 2003 /48/CE of June 3, 2003 on taxation
of the income from savings in the form of interest, worth the later of the
dates.
If the above is acceptable by the Government of V. Ex. th, I have the honour to propose
that the present letter and your confirmation shall jointly constitute an Agreement
between Portugal and Guernsey.
Want to accept, Excellent Lord, the protests of our highest
consideration "
I can confirm that Guernsey is in agreement with the content of the letter of V. Ex. th.
Want to accept, Excellent Lord, the protests of my highest
consideration,
By Guernsey
Chief Minister
Made in
Appendix 1
AGREEMENT ON THE TAXATION OF SAVINGS INCOME
BETWEEN GUERNSEY AND THE PORTUGUESE REPUBLIC
CONSIDERING THE FOLLOWING:
1. Preview Article 17 of Directive 2003 /48/CEE ("the Directive") of the Council of the
European Union ("the Council") on the taxation of savings income
that before January 1, 2004 Member States adopt and publish the
legislative, regulatory and administrative provisions necessary to give
compliance with that Directive, whose provisions will be applied to
of January 1, 2005, provided that:
" i) the Swiss Confederation, the Principality of Liechtenstein, the Republic of Saint
Marino, the Principality of Monaco, the Principality of Andorra apply the
from that same date measures equivalent to those established in the present
Directive, in accordance with the agreements concluded between these countries and
the European Community, following a unanimous decision of the
Advice;
ii) all agreements or other arrangements have been concluded that
establish that all dependent territories or relevant associates
will apply from that same date the automatic exchange of information in the
molds provided for in Chapter II of that Directive, (or, during the period of
transition defined in Article 10, will apply a withholding tax in the
conditions laid down in Articles 11 and 12) ".
2. Guernsey's relationship with the EU is the subject of Protocol No 3 of the Treaty
of Accession of the United Kingdom to the European Community. Under the terms of the Protocol
Guernsey is not situated in the EU tax territory.
3. Guernsey notes that, if the final objective of the EU Member States is
consisted of allowing for effective taxation of interest in the Member State of
tax residence of the beneficial owner through the exchange of information between them
relating to such interest payments, three Member States, namely Austria, the
Belgium and Luxembourg, will not be required to exchange information during a
transition period but will apply a withholding tax to the income of the
savings covered by the Directive.
4. The "withholding tax" referred to in the Directive shall be referred to as " tax of
retention " in the internal right of Guernsey. For the purposes of this Agreement the two
terms must be read coalately as " withholding tax / tax of
retention " and have the same meaning.
5. Guernsey woke up to apply a withholding tax with effect from
of January 1, 2005 provided that Member States have adopted the
legislative, regulatory and administrative provisions necessary to give
compliance with the Directive, and have been generously met the requirements of the
Article 17 of the Directive and Article 17 (2) of this Agreement.
6. Guernsey woke up to apply the exchange of automatic information in the molds
provided for in Chapter II of the Directive as of the end of the transitional period
defined in Article 10 (2) of the Directive.
7. Guernsey has legislation in the matter of collective investment bodies
which is presumed equivalent as to its effect to the EC legislation referred to in us
articles 2 and 6 of the Directive.
Guernsey and Portugal hereafter referred to as "Contracting Party" or " Parties
Contractors " unless the context requires otherwise,
They agreed to conclude the following agreement that obliges exclusively the Parties
Contractors and provides for:
a) the automatic exchange of information of the competent authority of Portugal
for the competent authority of Guernsey in the same way as for the
competent authority of a Member State;
b) the application by Guernsey, during the transition period defined in the
Article 10 of the Directive, of a withholding tax from the same date and
on the same conditions as those set out in Articles 11 and 12 of that
Directive;
c) the automatic exchange of information from the competent authority of Guernsey
for the competent authority of Portugal in harmony with Art. 13 para.
Directive;
d) the transfer of the competent authority from Guernsey to the authority
competent from Portugal of 75% of the withholding tax revenue.
in relation to interest payments made by a paying agent established in a
A Contracting Party to a natural person resident in the other Contracting Party.
For the purposes of this Agreement the term "competent authority" when applied to
contracting parties means " the Minister of Finance or his representative
authorized "relatively to Portugal and" the Administrator of Income Tax " relatively
to Guernsey.
Article 1 Retention of tax by paying agents
The interest payments set out in Article 8 of this Agreement made by
a paying agent established in Guernsey to actual beneficiaries, in the
Meaning of Article 5 of this Agreement, which are residents of Portugal stay,
without prejudice to the provisions of Article 3 of this Agreement, subject to a withholding
in relation to the amount of interest paid during the transition period referred to in the
Article 14 of this Agreement as of the date referred to in Article 15 of the present
Agreement. The rate of the withholding tax is expected to be 15% during the first three
years of the transition period, from 20% during the subsequent three years and from 35%
after this last period.
Article 2 Communication of information on the part of paying agents
1. Where interest payments are made, set out in Article 8 of the
this Agreement, by a paying agent established in Portugal to beneficiaries
actual, as defined in Article 5 of this Agreement, which are residents
of Guernsey, or where the provisions of paragraph 1 (a) of the
Article 3 of this Agreement, the paying agent shall report to the respective
competent authority:
a) identity and residence of the beneficial owner, determined in
compliance with Article 6 of this Agreement;
b) name or denomination and address of the paying agent;
c) account number of the beneficial owner or, in the absence thereof, identification of the
credit generator credit;
d) information in respect of the interest payments specified in paragraph 1 of the
Article 4 of this Agreement. However, the Contracting Parties may
limit the minimum content of the information that the paying agent must
communicate with regard to the payment of interest, to the total amount of the
interest or income and the total amount of the product of the assignment, of the
rescue or redemption;
and Portugal shall observe the paragraph 2 of this Article.
2. In the six months subsequent to the expiry of its fiscal year, the authority
competent from Portugal must communicate to the competent authority of Guernsey,
automatically, the information referred to in points (a) to (d) of paragraph 1 of the present
article, in relation to all the interest payments made during that year.
Article 3 Exceptions to the withholding tax system
1. When applying the withholding tax, in accordance with Article 1 of the present
Agreement, Guernsey shall establish one, or both, of the following procedures
so that the actual beneficiaries can request the non-application of that
retention:
a) a procedure that allows the beneficial owner, with the definition
which is given to you by Art. 5, avoid the withholding tax specified in the
Article 1 of this Agreement, expressly authorizing its agent
payer to communicate the information relating to interest payments to the
competent authority of the Contracting Party of establishment of the agent
payer. Such authorization will cover all interest payments
made to the beneficial owner by that paying agent;
b) a procedure that ensures that the withholding tax will not be enforced
when the beneficial owner submits to his or her paying agent a
certificate issued on its behalf by the competent authority of the Party
Contractor of tax residence pursuant to paragraph 2 of this Article.
2. At the request of the beneficial owner, the competent authority of the Contracting Party
of the country of tax residence shall issue a certificate stating:
i) name, address and tax identification number, or other, or, failing
of these, date and place of birth of the beneficial owner;
ii) name or denomination and address of the paying agent;
iii) account number of the beneficial owner or, in the absence thereof, identification of the
title of credit.
Such a certificate shall be valid for a period not exceeding three years. Must be
passed to any beneficial owner who requests it, within two months of
count of the submission of that application.
3. When applying to paragraph 1 (a) of this Article, the competent authority
of Guernsey of establishment of the paying agent shall communicate the information
referred to in Article 2 (1) of this Agreement to the competent authority of
Portugal as a country of residence of the beneficial owner. This communication
will be automatic and take place at least once a year, in the six months
subsequent to the end of the fiscal year defined in the Party's legislation
Contractor, in relation to all the interest payments made during that
year.
Article 4 Base of incidence of withholding tax
1. A paying agent established in Guernsey shall apply the withholding tax
in harmony with Art. 1 of this Agreement as follows:
a) in the case of a payment of interest within the meaning of paragraph 1 (a) of the
Article 8 of this Agreement: on the gross amount of interest paid or
taken to credit;
b) in the case of a payment of interest within the meaning of paragraphs (b) or (d) of paragraph 1
of Art. 8 of this Agreement: on the amount of interest or of the
income referred to in points (b) or (d) of that paragraph or through
an imposition of effect equivalent to the office of the recipient on the
total amount of the product of the assignment, the refund or the rescue;
c) in the case of a payment of interest within the meaning of point (c) of paragraph 1 of the
Article 8 of this Agreement: on the amount of interest referred to in that
provision;
d) in the case of a payment of interest within the meaning of Art. 8 (4) of the
present Agreement: on the amount of interest attributable to each of the
members of the entity referred to in Article 7 (2) of this Agreement which
meet the conditions of Article 5 (1) of this Agreement;
e) where Guernsey avails itself of the possibility provided for in Article 8 (5).
of this Agreement: on the amount of annualized interest.
2. For the purposes of paragraphs (a) and (b) of paragraph 1 of this Article, the tax of
retention will be deducted on a proportional basis with respect to the period during
which the beneficial owner holds a credit. Should the paying agent not be able
determine the period of detention on the basis of the information at its disposal, the
payer agent will assume that the beneficial owner has held himself in the possession of the
credit during the entirety of the period of its existence, unless the latter
provide evidence regarding the date on which it acquired it.
3. The application of the restraint tax by Guernsey does not preclude the other Party
Tax residence contractor of the beneficial owner of taxing the income
in accordance with its domestic law.
4. During the transition period, Guernsey can predict that an operator
economic that pays interest, or ascribe to the payment of interest, to an entity
referred to in Article 7 (2) of this Agreement in the other Contracting Party shall be
considered as the paying agent in place of the entity and apply the tax of
retention on these interest unless the entity has formally accepted that the
your name and address, as well as the total amount of interest paid to you or
assigned, are communicated in harmony with the last paragraph of the n ° 2 of the
Article 7 of this Agreement.
Article 5 Definition of beneficial owner
1. For the purposes of this Agreement, by "beneficial owner" means any
natural person who receives a payment of interest or any natural person to
who is assigned an interest payment, unless it makes proof that the interest
have not been paid to you or assigned to your advantage. It is assumed that a person
singular is not beneficial owner whenever:
a) acts as a payer agent within the meaning of Article 7 (1) of the
this Agreement;
b) act on the account of a legal person, of an entity with profits
taxed in the framework of common law provisions on taxation of the
companies, an authorized UCITS of harmony with the willing
Directive 85 /611/CEE or a collective investment body
equivalent established in Guernsey, or one of the entities to which it relates
o Article 7 (2) of this Agreement and, in the latter case, revise the name and
the address of that entity to the economic operator responsible for the
payment of interest, and the latter communicates in a follow up this information
to the competent authority of its Contracting Party of establishment;
c) act on the account of another natural person who is the beneficial owner and
to communicate to the paying agent the identity of the beneficial owner.
2. Case posits information that suffuded that the natural person who received a
payment of interest or who has been assigned an interest payment may not be the
beneficial owner and case do not apply to subparagraph (a) or (b) of paragraph 1, the
agent payer should take the reasonable steps to determine the identity of the
beneficial owner. If it is unable to identify the beneficial owner, the agent
payer shall consider the natural person concerned as the beneficial owner.
Article 6 Identification and determination of the place of residence of the beneficiaries
actual
1. Each of the Parties shall adopt and guarantee the application, in its territory, of the
procedures required to allow the paying agent to identify the
actual beneficiaries and the respective place of residence for the purposes of the
present Agreement. Such procedures must comply with the minimum standards
established in paragraphs 2 and 3.
2. The paying agent shall determine the identity of the beneficial owner of
agreement with minimum standards that vary depending on the date of commencement of
relations between the paying agent and the receiver of the interest payment, namely:
a) for the contractual relations established before January 1, 2004, the
payer agent shall determine the identity of the beneficial owner,
expressed by its name and address, based on the information that
has, inter alia, in application of the regulations in force in its
State of establishment and Directive 91 /308/CEE of June 10
of 1991 in the case of Portugal or equivalent legislation in the case of Guernsey
on the prevention of the use of the financial system for the purpose of
money laundering;
b) for the contractual relationships established, or for the transactions made
in the lack of contractual relationships, as of January 1, 2004 the agent
payer shall determine the identity of the beneficial owner, expressed by the
your name, address and, should it exist, tax identification number assigned
by the Member State of tax residence. These elements must be
determined on the basis of the passport or the official identity card
presented by the beneficial owner. If it does not appear in the passport or the
official identity card, the address is determined on the basis of
any other supporting document submitted by the beneficiary
effective. If the tax identification number does not appear on the passport, of the
official identity card or any other document
proving, including, eventually, the attestative of tax residence,
presented by the beneficial owner, the identity will be completed by the
mention of the date and place of birth of the beneficial owner,
determined on the basis of your passport or official identity card.
3. The paying agent shall determine the residence of the beneficial owner of the agreement
with minimum standards that vary depending on the date of commencement of relations between the
paying agent and the receiver of the interest payment. Subject to the exposed below,
it is considered that the residence is located in the country in which the beneficial owner has the
your permanent domicile:
a) for the contractual relations established before January 1, 2004, the
payer agent must determine the residence of the beneficial owner with
basis in the information available to it, particularly in application of the
regulation in force in its state of establishment and of the
Directive 91 /308/CEE in the case of Portugal or equivalent legislation in the case
from Guernsey;
b) for the contractual relationships established, or for the transactions made
in the lack of contractual relationships, as of January 1, 2004, the agent
payers must determine the residence of the beneficial owner on the basis of
at the address mentioned in your passport or official identity card
or, if necessary, in any other supporting document presented
by the beneficial owner, in accordance with the following procedure: for the
natural persons who present a passport or a ticket from
official identity issued by a Member State and declaron to be residents
in a third country, the residence shall be determined on the basis of an attestative
of tax residence issued by the competent authority of the third country in
that the natural person declars residir. In the lack of presentation of that
attestative, the residence is deemed to be situated in the Member State which
has issued the passport or any other official identity document. "
Article 7 Definition of paying agent
1. For the purposes of this Agreement, by "paying agent" means any
economic operator who pays interest or assigns the payment of interest to the advantage
immediate from the beneficial owner, regardless of whether that operator is the
debtor of the interest generator credit or the operator in charge of the debtor or
by the beneficial owner of paying or assigning the payment of the interest.
2. Any entity established in a Contracting Party to which interest is paid
or attributed the payment of interest to the benefit of the beneficial owner must
also be considered as a paying agent at the time of that payment or the
allocation of the same. This provision does not apply if the operator
economic has reason to believe, on the basis of supporting elements
officers presented by the entity, which:
a) whether it is a legal person, with the exception of legal persons
referred to in paragraph 5 of this Article; or
b) its profits are taxed in application of common law provisions
in matters of corporate taxation; or
c) whether it is an authorized UCITS of harmony with the provisions of the
Directive 85 /611/CEE of the Council or of an investment body
equivalent collective established in Guernsey.
An economic operator who pays or assigns the payment of interest to a
entity of this type established in another Contracting Party that is considered
as a paying agent under the terms of this paragraph shall communicate the name and the
address of the entity, as well as the total amount of interest paid or assigned to the
entity, to the competent authority of its Contracting Party of establishment,
who will then communicate this information to the competent authority of the Party
Contractor of establishment of the said entity.
3. The entity referred to in paragraph 2 shall, however, have the possibility of being treated for
effects of this Agreement as an OICVM or equivalent body referred to
in point (c) of paragraph 2. Recourse to such a possibility will be the subject of a certificate
issued by the Contracting Party of establishment of the entity and delivered by that
entity to the economic operator. The Contracting Parties shall lay down the rules
specific relating to this possibility for the entities established in their
territory.
4. Should the economic operator and the entity referred to in paragraph 2 be established in the
same Contracting Party, the latter shall take the necessary measures to
ensure that the entity complies with the provisions of this Agreement when it acts
in the quality of paying agent.
5) Legal persons excluded from the application of paragraph 2 (a) shall be:
a) in Finland: avoin yhtio (Ay) and kommandiittiyhtio (Ky) /oppet bolag and
kommanditbolag;
b) in Sweden: handelsbolag (HB) and kommanditbolag (KB).
Article 8 Definition of interest payment
1. For the purposes of this Agreement, "payment of interest" means:
a) the interest paid or credited to account in respect of claims from any
nature, with or without a mortgage guarantee and with a right or not to participate
in the profits of the debtor, and, in particular, the income of the public debt and
of loan obligations, including premiums achievable to such securities;
the penalties for late payment are not considered to be
payment of interest;
b) the interest accrued or capitalized carried out at the time of the assignment, of the
reimbursement or the rescue of the credits referred to in point (a);
c) the income from interest payments, whether these are
performed directly, either through an entity referred to in the
n Article 7 (2) of this Agreement, distributed by:
i) an authorized UCITS of harmony with the provisions of the
Council Directive 85 /611/CEE;
ii) an equivalent collective investment body established in
Guernsey;
iii) entities that benefit from the possibility provided for in paragraph 3 of the
article 7 of this Agreement;
iv) bodies for collective investment established outside the territory a
that applies to the Treaty establishing the European Community by force
of your article 299 ° and outside of Guernsey.
d) income realized at the time of the assignment, the refund or the rescue of
parts or units of participation in the following bodies and entities,
if they have invested, directly or indirectly, through other
collective investment bodies or authorities below, more
of 40% of its asset in credits referred to in (a):
i) an authorized UCITS of harmony with the provisions of the
Directive 85 /611/CEE;
ii) an equivalent collective investment body established in
Guernsey.
iii) entities that benefit from the possibility provided for in paragraph 3 of the
article 7 of this Agreement;
iv) bodies for collective investment established outside the territory a
that applies to the Treaty establishing the European Community by force
of your article 299 ° and outside of Guernsey.
However, the Contracting Parties may limit the inclusion of the income referred to in the
d (d) of paragraph 1 of this Article in the definition of interest only in the proportion in which
these yields correspond to income that, directly or indirectly,
provenham from a payment of interest within the meaning of points (a) and (b) of paragraph 1 of the
present article.
2. As referred to in points (c) and (d) of paragraph 1 of this Article, if an agent
payer does not have any information relating to the part of income
coming from interest payments, the total amount of income must be
considered as payment of interest.
3. With respect to paragraph 1 (d) of this Article, if a paying agent
do not have any information regarding the percentage of the asset invested in
credits or in parts or units of participation as defined in that paragraph,
it should be considered that that percentage is more than 40%. When it can't
determine the amount of income realized by the beneficial owner,
it is considered that the yield is the product of the assignment, refund or ransom
of the parties or units of participation.
4. When they are paid or credited to the account of an entity referred to in paragraph 2 of the
article 7 of this Agreement interest, as defined in paragraph 1, and that entity
does not benefit from the possibility provided for in Article 7 (3) of this Agreement,
such interest shall be considered as a payment of interest carried out by
that entity.
5. As regards paragraphs (b) and (d) of paragraph 1 of this Article, the Parties
Contractors may require paying agents located on their territory to
annualization of interest in relation to a period that may not exceed one year, and
treat these annualized interest as a payment of interest even if not if
has verified any assignment, refund or rescue during that period.
6. By way of derogation from paragraphs (c) and (d) of paragraph 1 of this Article, the Parties
Contractors may exclude from the definition of payment of interest any
income referred to in those provisions from bodies or entities
established in their territory whenever the investments of these entities in the
credits referred to in point (a) of paragraph 1 do not exceed 15% of their asset. Of the same
mode, by way of derogation from the provisions of paragraph 4 of this Article, the Parties
Contractors may decide to exclude from the definition of constant interest payment
of paragraph 1 the interest paid or credited to an account of an entity referred to in paragraph 2
of Article 7 of this Agreement which does not benefit from the possibility provided for in the
n Article 7 (3) of this Agreement and is established in its territory,
where the investments of such entities in the credits referred to in (a)
of paragraph 1 do not exceed 15% of its asset.
The use of this option by a Contracting Party makes it binding on the
too many Contracting Parties.
7. As of January 1, 2011, the percentage referred to in point (d) of paragraph 1 and in the
n ° 3 of this Article shall pass from 25%.
8. The percentages referred to in point (d) of paragraph 1 of this Article and in paragraph 6 of the
this article should be determined in relation to the investment policy such
as defined in the regulation of the fund or in the constitutive documents of the
organisms or entities concerned or, in their absence, depending on the composition
effective of the assets of such bodies or entities.
Article 9 Breakdown of revenue from withholding tax
1. Guernsey must withhold 25% of the withholding tax deducted under the present
Agreement and transfer the remaining 75% of these revenue to the other Contracting Party.
2. When applying a withholding tax, in harmony with Article 4 (4) of the
This Agreement, Guernsey shall conserve 25% of its revenue and transfer 75%
of these revenues to Portugal in the proportion of the transfers made in the
terms of paragraph 1 of this article.
3. Such transfers shall be carried out annually, in a single provision, the
not later than within 6 months subsequent to the end of the tax year
defined in the legislation of Guernsey.
4. When applying a withholding tax, Guernsey shall adopt the necessary measures
to ensure the proper functioning of the revenue sharing system.
Article 10 Elimination of double taxation
1. The Contracting Party of tax residence of the beneficial owner shall ensure the
elimination of any double taxation eventually resulting from the imposition
by Guernsey of the withholding tax referred to in this Agreement of
harmony with the following provisions:
i) if the interest received by an actual beneficiary has been subject to
withholding tax in Guernsey, the other Contracting Party shall
give you a tax credit equal to the amount of the withholding tax
compliance with their domestic law. In the case of the amount of this
exceed the amount of tax due in accordance with your right
internal, the other Contracting Party shall reimburse to the beneficial owner
the amount of the withholding tax paid in excess;
ii) if, to be added to the withholding tax referred to in Article 4 of the present
Agreement, the interest received by an effective beneficiary has been
subject to any other type of withholding tax / withholding tax and the
Part Contractor of tax residence grants a tax credit for
this withholding tax / withholding tax in accordance with your
internal law or conventions on double taxation, such other retention in the
source / withholding tax should be credited before being applied the
procedure set out in paragraph (i) of this Article.
2. The Contracting Party's tax residence of the beneficial owner may replace the
tax credit mechanism provided for in paragraph 1 of this Article by a
a refund of the withholding tax referred to in Article 1 of this Agreement.
Article 11 Transitional provisions for negotiable debt securities
1. During the period of transition referred to in Article 14 of this Agreement, but
by December 31, 2010 at the latest, national obligations and
international and other negotiable debt securities whose initial issuance is
previous to March 1, 2001 or whose initial prospectuses have been targeted
before that date by the competent authorities within the meaning of the
Directive 80 /390/CEE of the Council or by the responsible authorities of countries
third parties should not be considered credits within the meaning of point (a) of paragraph 1 of the
Article 8 of this Agreement, provided that no new issuance is carried out
of these negotiable debt securities as of March 1, 2002. However, case
the transition period continues to invigorate after December 31, 2010, the
provisions of this article will only continue to apply to debt securities
negotiable:
-that include "all-of-all" clauses and early redemption; and
-in cases where the paying agent is established in a Party
Contractor who applies the withholding tax and in which such paying agent
pay interest or ascribe the payment of interest in immediate advantage of a
beneficial owner resident in the other Contracting Party.
If, as of March 1, 2002, new issuance of one of the securities of
tradable credit referred to above issued by a public administration or
afim entity, acting in the quality of public authority, or whose function is
recognized in an international treaty, as defined in the Annex to the present
Agreement, all emissions from that title, i.e. the initial issue and any issuance
additional, should be considered as an issue of a credit title in the
meaning of subparagraph (a) of Article 8 (1) of this Agreement.
If, as of March 1, 2002, new issuance of one of the securities of
tradable credit listed above issued by any entity not covered
by the second paragraph, such a new issue shall be considered an issue of
a credit title within the meaning of Article 8 (1) (a) of the present
Agreement.
2. No provision of this Article shall prevent the Contracting Parties from
to tax the income from the tradable debt securities referred to in paragraph 1 of
harmony with the respective internal right.
Article 12 Procedure of mutual agreement
Where they overcome between the Parties difficulties or doubts regarding the application
or interpretation of this Agreement, the Contracting Parties shall diliate in the sense of
remedy the issue by mutual agreement.
Article 13 Confidentiality
1. The confidentiality of all information provided and received must be preserved
by the competent authority of a Contracting Party.
2. The information provided to the competent authority of a Contracting Party shall not
may be used for any effect other than for the effects of taxation
direct without prior written consent of the other Contracting Party.
The information provided should only be disclosed to persons or interested authorities
for purposes of direct taxation, and used by such persons or authorities only
for such effects or for supervisory purposes, which may include the establishment of a
possible recourse. For this purpose, the information may be disclosed at a hearing
public or in court decision.
4. When the competent authority of a Contracting Party considers that the
information that it has received from the competent authority of the other Contracting Party
may be useful to the competent authority of another Member State, may
transmit you such information with the agreement of the competent authority which
provided the information.
Article 14 Transitional Period
At the end of the transitional period defined in Article 10 (2) of the Directive, Guernsey
shall cease to apply the withholding tax and the allocation of the revenue provided for in the
this Agreement and shall apply in respect of the other Contracting Party to the provisions
in the matter of automatic exchange of information in the moulds provided for in Chapter II of the
Directive. If during the transitional period Guernsey chooses to apply the provisions in
automatic exchange of information in the moulds provided for in Chapter II of the
Directive, will cease to apply withholding tax / withholding tax and the allocation of the
revenue provided for in Article 9 of this Agreement.
Article 15 Entry into force
Subject to the provisions of Article 17 of this Agreement, the present Agreement enters into
vigour on January 1, 2005.
Article 16 Denpronunciation
1. The present Agreement shall remain in force until it is denounced by a Party
Contractor.
2. Any of the Contracting Parties may denounce the present Agreement by
notice in writing to the other Contracting Party, in a notification specifying the
circumstances that led to that same notification. In this case, the present
Agreement cede no effect of 12 months after notification.
Article 17 Application and suspension of application
1. The application of this Agreement shall be conditional on the adoption and application by
all Member States of the European Union, by the United States of America,
the Switzerland, Andorra, oLiechtenstein, Monaco and São Marino, and by all territories
dependent and relevant associates of the Member States of the Community
European, respectively, of measures that conform to or be equivalent
to those contained in the Directive or in this Agreement, and provide for the same dates as
application.
2. The Contracting Parties shall decide by common agreement, at least six months
prior to the date referred to in Article 15 of this Agreement, if the condition
set out in paragraph 1 will be met, taking into account the dates of entry into force
of the relevant measures in the Member States, third countries and territories
dependent or associated in question.
3. Subject to the procedure of mutual agreement provided for in Article 12 of the present
Agreement, the application of this Agreement or parts of the Agreement may be suspended
by any of the Contracting Parties with immediate effect upon notification to the
another that specifies the circumstances that led to this notification, in the case of
the Directive shall cease to be applicable, on a temporary or permanent basis, in
compliance with Community law or in the case of a Member State
suspend the application of its transposition legislation. The implementation of the Agreement
will be resumed as soon as they cease to check the circumstances that led to the
suspension.
4. Subject to the procedure of mutual agreement provided for in Article 12 of the present
Agreement, any of the Contracting Parties may suspend the application of the present
Agreement by notification to the other that specifies the circumstances that
led to such notification in the case of one of the territories or third countries
referred to in paragraph 1 shall subsequently leave to apply the measures referred to in that
number. Suspension of application will not be allowed to occur less than two months after the
notification. The implementation of the Agreement will be resumed as soon as the measures are
repurposed by the third country or territory concerned.
Made in the Portuguese and English languages, making all texts equally authentic.
ANNEX
List of the equated entities referred to in Article 11 para.
AGREEMENT
IN THE FORM OF AN EXCHANGE OF LETTERS
ON THE TAXATION OF SAVINGS INCOME AND THE PROVISIONAL
APPLICATION
DATA
A. Letter from the World's Republic
Sir,
I have the honour to refer to the texts of the "Proposed Model Agreement"
between each other of Guernsey, Isle of Man, and Jersey and each individual EU Member
State that is to apply automatic exchange of information "and the" Proposed Model
Agreement between each other of Guernsey, Isle of Man, and Jersey and each individual EU
Member State that is to apply the withholding tax in the transitional period ", that
banned from the negotiations with the Island Authorities on a Savings Tax Agreement,
and that were served, as an outcome of the Annex I and Annex II, to the Outcome of
Proceedings of the High Level Working Party of the Council of Ministers of the Council of Ministers of the
European Union of 12 March (Doc. 7408/04 FISC 58).
In view of the above mentioned texts I have the honour to propose to you the
"Agreement on the taxation of savings income" as contained in Appendix 1 to this
letter, and our mutual undertaking to be told at the earliest possible date with our
internal constitutional reform for the entry into force of this Agreement and to
notify each other without delay when such a completed are completed.
Pending the completion of these internal procedures and the entry into force of this
"Agreement on the taxation of savings income", I have the honour to propose to you
that Portugal and Guernsey apply this Agreement provisionally, within the framework
of our respective domestic constitutional requirements, as from 1 January 2005, or the
date of application of Council Directive 2003 /48/EC of 3 June 2003 on taxation of
savings income in the form of interest payments, whichever is later.
I have the honour to propose that, if the above is acceptable to your Government, this
letter and your confirmation shall together receives an Agreement between Portugal
and Guernsey.
Please accept, Sir, the assurance of our highest consideration,
For the World Republic
Minister of State and Finance
Done at Lisbon, on Jun 22 2004, in the English language in three copies.
B. Letter from Guernsey
Sir,
I have the honour to acknowledge receipt of your letter of today's date, which reads as
follows:
" Sir,
I have the honour to refer to the texts of protests the " Proposed Model
Agreement between each of Guernsey, Isle of Man, and Jersey and each individual
EU member State that is to apply automatic exchange of information " and the
" Proposed Model Agreement between each of Guernsey, Isle of Man, and Jersey
and each individual EU member State that is to apply the withholding tax in the
transitional period ", that would be derived from the negotiations with the Island Authorities
on a Savings Tax Agreement, and that were being carried out, as an Annex I and
Proceeding II, to the Outcome of Proceedings of the High Level Working Party of the
Council of Ministers of the European Union of 12 March (Doc. 7408/04 FISC 58).
In view of the above mentioned texts I have the honour to propose to you the
"Agreement onthe taxation of savings income" as contained in Appendix 1 to this
letter, and our mutual
undertaking to aim at the earliest possible date with our internal constitutional
Strive for the entry into force of this Agreement and to notify each other
without delay when such journalist are completed.
Pending the completion of these internal procedures and the entry into force of this
"Agreement on the taxation of savings income", I have the honour to propose to
you that Portugal and Guernsey apply this Agreement provisionally, within the
framework of our respective domestic constitutional requirements, as from 1
January 2005, or the date of application of Council Directive 2003 /48/EC of 3
June 2003 on taxation of savings income in the form of interest payments,
whichever is later.
I have the honour to propose that, if the above is acceptable to your Government, this
letter and your confirmation shall together receives an Agreement between Portugal
and Guernsey.
Please accept, Sir, the assurance of our highest consideration, "
I am able to confirm that Guernsey is in agreement with the contents of your letter.
Please accept, Sir, the assurance of my highest consideration,
For Guernsey
Chief Minister
Done at St. Peter Port, on 19.11.2004 , in the English language in three copies.
Appendix 1
AGREEMENT ON THE TAXATION OF SAVINGS INCOME BETWEEN
GUERNSEY
AND THE WORLD REPUBLIC
WHEREAS:
1. Article 17 of Directive 2003 /48/EEC ("the Directive") of the Council of the
European Union ("the Council") on taxation of savings income provides that
before 1 January 2004 Member States shall adopt and publish the laws, regulations
and administrative provisions necessary to be made with this Directive
provisions shall be applied from 1 January 2005 provided that:
" (i) the Swiss Confederation, the Principality of Liechtenstein, the Republic of
San Marino, the Principality of Monaco and the Principality of Andorra
apply from that same date measures equivalent to those contained in this
Directive, in accordance with agreements entered into by them with the
European Community, following unanimous decisions of the Council;
(ii) all agreements or other arrangements are in place, which provide that all the
relevant dependent or associated territories apply from that same date
automatic exchange of information in the same manner as is provided for in
Chapter II of this Directive, (or, during the transitional period defined in
Article 10, apply a withholding tax on the same terms as are contained in
Articles 11 and 12) ".
2. The relationship of Guernsey with the EU is determined by Protocol 3 of the
Treaty of Accession of the United Kingdom to the European Community. Under
the terms of the Protocol Guernsey is not within the EU fiscal territory.
3. Guernsey notes that, while it is the ultimate aim of the EU Member States to bring
about effective taxation of interest payments in the beneficial owner's Member
State of residence for tax purposes through the exchange of information
concerning interest payments between themselves, three Member States, photographs
Austria, Belgium and Luxembourg, during the transitional period, shall not be
required to exchange information but shall apply to withholding tax to the savings
income covered by the Directive.
4. The "withholding tax" referred to in the Directive will be referred to as
"retention tax" in Guernsey's domestic legislation. For the purposes of this
Agreement the two terms therefore are to be read coterminously as
"withholding/retention tax" and shall have the same thing.
5. Guernsey has agreed to apply for retention tax with effect from 1 January 2005
provided the Member States have adopted the laws, regulations, and
administrative provisions necessary to be made with the Directive, and the
requirements of Article 17 of the Directive and Article 17 (2) of this Agreement
have generally been met.
6. Guernsey has agreed to apply automatic exchange of information in the same
manner as is provided for in Chapter II of the Directive from the end of the
transitional period as defined in Article 10 (2) of the Directive.
7. Guernsey has legislation relating to the undertakings for collective investment that is
would be able to be equivalent in its effect to the EC legislation referred to in Articles 2
and 6 of the Directive.
Guernsey and Portugal opposition referred to as a "contracting party" or the
"contracting parties" unless the context otherwise requires,
Have agreed to agree the following agreement which contains obligations on the part
of the contracting parties only and provides for:
(a) the automatic exchange of information by the competent authority of Portugal
to the competent authority of Guernsey in the same manner as to the
competent authority of a Member State;
(b) the application by Guernsey, during the transitional period defined in Article
10 of the Directive, of a retention tax from the same date and on the same
terms of the are contained in Articles 11 and 12 of that Directive;
(c) the automatic exchange of information by the competent authority of
Guernsey to the competent authority of Portugal in accordance with
Article 13 of the Directive;
(d) the transfer by the competent authority of Guernsey to the competent authority
of Portugal of 75% of the revenue of the retention tax;
in respect of interest payments made by a paying agent established in a contracting party
to an individual resident in the other contracting party.
For the purposes of this Agreement the term 'competent authority' when applied to the
Parties means "the Minister of Finance or an authorised representative" in
respect of Portugal and "the Administrator of Income Tax" in respect of Guernsey.
Article 1 Retention of Tax by Paying Agents
Interest payments as defined in Article 8 of this Agreement which are made by a paying
agent established in Guernsey to beneficial owners within the course of Article 5 of
this Agreement who are residents of Portugal shall, subject to Article 3 of this
Agreement, be subject to a retention from the amount of interest payment during the
transitional period referred to in Article 14 of this Agreement starting at the date
referred to in Article 15 of this Agreement. The rate of retention tax shall be 15% during
the first three years of the transitional period, 20% for the subsequent three years and
35% percent.
Article 2 Reporting of Information by Paying Agents
(1) Where interest payments, as defined in Article 8 of this Agreement, are made by
a paying agent established in Portugal to beneficial owners, those defined in Article
5 of this Agreement, who are residents of Guernsey, or where the provisions of
Article 3 (1) (a) of this Agreement apply, the paying agent shall report to its
competent authority:
(a) the identity and residence of the beneficial owner established in accordance
with Article 6 of this Agreement;
(b) the name and address of the paying agent;
(c) the account number of the beneficial owner or, where there is none,
identification of the debt claim giving rise to the interest;
(d) information concerning the interest payment specified in Article 4 (1) of this
Agreement. However, each contracting party may restrict the minimum
amount of information concerning interest payment to be reported by the
paying agent to the total amount of interest or income and to the total amount
of the banned from sale, redemption or refund;
and Portugal will be charged with paragraph (2) of this Article.
(2) Within six months following the end of the tax year, the competent authority of
Portugal shall communicate to the competent authority of Guernsey,
automatically, the information referred to in paragraph (1) (a)-(d) of this
Article, for all interest payments made during that year.
Article 3 Exceptions to the Retention Tax Procedure
(1) Guernsey when levying a retention tax in accordance with Article 1 of this
Agreement shall provide for one or both of the following procedures in order to
ensure that the beneficial owners may request that in the tax be retained:
(a) a procedure which allows the beneficial owner as defined in Article 5 of this
Agreement to avoid the retention tax specified in Article 1 of this Agreement
by expressly paying his paying agent to report the interest payments to
the competent authority of the contracting party in which the paying agent is
established. Such an authorisation shall cover all interest payments made to the
beneficial owner by that paying agent;
(b) a procedure which would be that retention tax shall not be increased where the
beneficial owner presents to his paying agent a certificate drawn up in his
name by the competent authority of the contracting party of residence for tax
purposes in accordance with paragraph (2) of this Article.
(2) At the request of the beneficial owner, the competent authority of the contracting
party of the country of residence for tax purposes shall issue a certificate
a:
(i) the name, address and tax or other identification number or, failing such, the
date and place of birth of the beneficial owner;
(ii) the name and address of the paying agent;
(iii) the account number of the beneficial owner or, where there is none, the
identification of the security.
Such certificate shall be valid for a period not full-time three years. It shall be
issued to any beneficial owner who requests it, within two months following such
request.
(3) Where paragraph (1) (a) of this Article applies, the competent authority of
Guernsey in which the paying agent is established shall communicate the
information referred to in Article 2 (1) of this Agreement to the competent
authority of Portugal as the country of residence of the beneficial owner. Such
communications shall be automatic and shall take place at least once a year, within
six months following the end of the tax year established by the laws of a
contracting party, for all interest payments made during that year.
Article 4 Basis of assessment for retention tax
(1) A paying agent established in Guernsey shall levy retention tax in accordance with
Article 1 of this Agreement as follows:
(a) in the case of an interest payment within the proceedings of Article 8 (1) (a) of
this Agreement: on the gross amount of interest paid or credited;
(b) in the case of an interest payment within the proceedings of Article 8 (1) (b) or
(d) of this Agreement: on the amount of interest or income or income referred to in (b)
or (d) of that paragraph or by a levy of equivalent effect to be borne by the
recipient on the full amount of the sale of the sale, redemption or
refund;
(c) in the case of an interest payment within the proceedings of Article 8 (1) (c) of
this Agreement: on the amount of interest referred to in that sub-section;
(d) in the case of an interest payment within the proceedings of Article 8 (4) of this
Agreement: on the amount of interest attributable to each of the members of
the entity referred to in Article 7 (2) of this Agreement who meet the
conditions of Article 5 (1) of this Agreement;
(e) where Guernsey exercises the option under Article 8 (5) of this Agreement:
on the amount of annualised interest.
(2) For the purposes of sub-paragraphs (a) and (b) of paragraph (1) of this Article, the
retention tax shall be deducted on a pro rata basis to the period during which the
beneficial owner held the debt-claim. If the paying agent is unable to determine
the period of holding on the basis of the information made available to him, the
paying agent shall treat the beneficial owner as having been in the proceedings of the
debt-claim for the entire period of its existence, unless the latter provides evidence
of the date of the acquisition.
(3) The age of retention tax by Guernsey shall not vary the other
house party of residence for tax purposes of the beneficial owner from taxing
income in accordance with its national law.
(4) During the transitional period, Guernsey may provide that an economic operator
paying interest to, or securing interest for, an entity referred to in Article 7 (2) of
this Agreement in the other contracting party shall be considered the paying agent
in place of the entity and shall levy the retention tax on that interest, unless the
entity has formally agreed to its name, address and the total amount of the interest
paid to it or secured for it being held in accordance with the last
paragraph of Article 7 (2) of this Agreement.
Article 5 Definition of beneficial owner
(1) For the purposes of this Agreement, "beneficial owner" shall mean any individual
who convicted an interest payment or any individual for an individual's interest payment
is secured, unless such individual can provide evidence that the interest payment
was not received or secured for his own benefit. An individual is not being told to be
the beneficial owner when he:
(a) acts as a paying agent within the course of Article 7 (1) of this Agreement;
(b) acts on behalf of a legal person, an entity which is taxed on its profits under
the general arrangements for business taxation, an UCITS authorised in
accordance with Directive 85 /611/EEC or an equivalent undertaking for
collective investment established in Guernsey, or an entity referred to in
Article 7 (2) of this Agreement and, in the last mentioned case, discloses the
name and address of that entity to the economic operator making the interest
payment and the latter communicates such information to the competent
authority of its contracting party of establishment;
(c) acts on behalf of another individual who is the beneficial owner and
discloses to the paying agent the identity of that beneficial owner.
(2) Where a paying agent has information reveals that the individual who has been
an interest payment or for an interest payment is secured may not be the
beneficial owner, and where neither paragraph (1) (a) nor (1) (b) of this Article
applies, it shall take reasonable steps to establish the identity of the beneficial
owner. If the paying agent is unable to identify the beneficial owner, it shall treat
the individual in question as the beneficial owner.
Article 6 Identity and residence of beneficial owners
(1) Each Party shall, within its territory, adopt and ensure the application of the
procedures necessary to allow the paying agent to identify the beneficial owners
and their residence for the purposes of this Agreement. Such procedures shall
braking with the minimum standards established in paragraphs (2) and (3).
(2) The paying agent shall establish the identity of the beneficial owner on the basis
of minimum standards which vary according to when relations between the
paying agent and the recipient of the interest are entered into, as follows:
(a) for contractual relations entered into before 1 January 2004, the paying
agent shall establish the identity of the beneficial owner, who is helpful of his
name and address, by using the information at its disposal, in particular
to the regulations in force in its country of establishment and to
Council Directive 91 /308/EEC of the 10th June, 1991 in the case of
Portugal or equivalent legislation in the case of Guernsey on prevention of
the use of the financial system for the purpose of money laundering;
(b) for contractual relations entered into, or transactions carried out in the
of a degree of contractual relations, on or after 1 January, 2004 the paying
agent shall establish the identity of the beneficial owner, which is
name, address and, if there is one, the tax identification number allocated
by the Member State of residence for tax purposes. These details should be
established on the basis of the passport or of the official identity card
Helpful by the beneficial owner. If it does not appear on that passport or
official identity card, the address shall be established on the basis of any
other documentary proof of identity corrected by the beneficial owner. If
the tax identification number is not mentioned on the passport, on the
official identity card or any other documentary proof of identity, including,
possibly the certificate of residence for tax purposes, investigated by the
beneficial owner, the identity shall be helpful by a reference to the
latter's date and place of birth established on the basis of his passport or
official identification card.
(3) The paying agent shall establish the residence of the beneficial owner on the basis
of minimum standards which vary according to when relations between the paying
agent and the recipient of the interest are entered into. Subject to the conditions set
out below, residence shall be considered to be situated in the country where the
beneficial owner has his permanent address:
(a) for contractual relations entered into before 1 January, 2004 the paying
agent shall establish the residence of the beneficial owner by using the
information at its disposal, in particular to the regulations in force
in its country of establishment and to Directive 91 /308/EEC in the case of
Portugal or equivalent legislation in the case of Guernsey;
(b) for contractual relations entered into, or transactions carried out in the
against a degree of contractual relations, on or after 1 January, 2004, the paying
agents shall establish the residence of the beneficial owner on the basis of
the address mentioned on the passport, on the official identity card or, if
necessary, on the basis of any documentary proof of identity corrected by
the beneficial owner and according to the following procedure: for
individuals to have a passport or official identity card issued by a
Member State who declarates themselves to be resident in a third country,
residence shall be established by means of a tax residence certificate issued
by the competent authority of the third country in which the individual
claims to be resident. Failing the presentation of such a certificate, the
Member State which issued the passport or other official identity document
shall be considered to be the country of residence.
Article 7 Definition of paying agent
(1) For the purposes of this Agreement, 'paying agent' means any economic operator
who pays interest to or secures the payment of interest for the immediate benefit
of the beneficial owner, whether the operator is the debtor of the debt claim which
discuss the interest or the operator charged by the debtor or the beneficial owner
with paying interest or securing the payment of interest.
(2) Any entity established in a contracting party to which interest is paid or for which
interest is secured for the benefit of the beneficial owner shall also be considered a
paying agent upon such payment or securing of such payment. This provision
shall not apply if the economic operator has reason to believe, on the basis of
official evidence produced by that entity that:
(a) it is a legal person with the exception of those legal persons referred to in
paragraph (5) of this Article; or
(b) its profits are taxed under the general arrangements for business taxation; or
(c) it is an UCITS recognised in accordance with Directive 85 /611/EEC of the
Council or an equivalent undertaking for collective investment established in
Guernsey.
An economic operator paying interest to, or securing interest for, such an entity
established in the other contracting party which is considered a paying agent under
this paragraph shall communicate the name and address of the entity and the total
amount of interest paid to, or secured for, the entity to the competent authority of
its contracting party of establishment, which shall pass this information on to the
competent authority of the contracting party where the entity is established.
(3) The entity referred to in paragraph (2) of this Article shall, however, have the
option of being held for the purposes of this Agreement as an UCITS or
equivalent undertaking as a referred to in sub-paragraph (c) of paragraph (2) of this
article. The exercise of this option shall require a certificate to be issued by the
party in which the entity is established and has applied to the economic
operator by that entity. The party's party shall lay down the detailed rules for
this option for entities established in its territory.
(4) Where the economic operator and the entity referred to in paragraph (2) of this
Article are established in the same contracting party, that a party shall be
take the necessary measures to ensure that the entity is exploring with the provisions
of this Agreement when it acts as a paying agent.
(5) The legal persons banned from sub- paragraph (a) of paragraph (2) of this
Article are
(a) in Finland: avoin yhtio (Ay) and kommandiittiyhtio (Ky) /oppet bolag and
kommanditbolag;
(b) in Sweden: handelsbolag (HB) and kommanditbolag (KB).
Article 8 Definition of interest payment
(1) For the purposes of this Agreement "interest payment" shall mean:
(a) interest paid, or credited to an account, relating to 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
ans and prizes attaching to such securities, bonds or debentures;
penalty charges for late payment shall not be imposed on interest payment;
(b) interest accrued or capitalised at the sale, refund or redemption of the debt
claims referred to in (a);
(c) income deriving from interest payments either directly or through an entity
referred to in Article 7 (2) of this Agreement, distributed by:
(i) an UCITS authorised in accordance with EC Directive 85 /611/EEC of
the Council;
(ii) an equivalent undertaking for collective investment established in
Guernsey;
(iii) entities which qualify for the option under Article 7 (3) of this
Agreement;
(iv) undertakings for collective investment established outside the territory
to which the Treaty applies the European Community applies by
virtue of Article 299 protests and outside Guernsey.
(d) income from the sale, refund or redemption of shares or units in the
following undertakings and entities, if they invest directly or indirectly, via
other undertakings for collective investment or entities referred to below,
more than 40% of their assets in debt claims as a referred to in (a):
(i) an UCITS authorised in accordance with Directive 85 /611/EEC;
(ii) an equivalent undertaking for collective investment established in
Guernsey.
(iii) entities which qualify for the option under Article 7 (3) of this
Agreement;
(iv) undertakings for collective investment established outside the territory
to which the Treaty applies the European Community applies by
virtue of Article 299 protests and outside Guernsey.
However, the contracting parties shall have the option of including income
mentioned under paragraph (1) (d) of this Article in the definition of interest
only to the extent that such income was to be directly or indirectly caused by
deriving from interest payments within the banned of paragraphs (1) (a) and
(b) of this Article.
(2) The Amendments (1) (c) and (d) of this Article, when a paying agent has no
information concerning the proportion of the income which derives from interest
payments, the total amount of the income shall be considered an interest payment.
(3) The Amendments (1) (d) of this Article, when a paying agent has no
information concerning the percentage of the assets of the assets in debt claims or in
shares or units as defined in that paragraph, that percentage shall be considered to
be above 40%. Where he cannot determine the amount of income by the
beneficial owner, the income shall be helpful to the benefits of the study of the
sale, refund or redemption of the shares or units.
(4) When interest, as defined in paragraph (1) of this Article, is paid
to or credited to an account held by an entity referred to in Article 7 (2) of this
Agreement, such entity not having qualified for the option under Article 7 (3) of
this Agreement, such interest shall be considered an interest payment by such
entity.
(5) The following paragraphs (1) (b) and (d) of this Article, a party's party shall have
the option of paying agents in its territory to annualise the interest over
a period of time which may not exceed one year, and excellent such annualised
interest as an interest payment even if no sale, redemption or refund occurs during
that period.
(6) By way of populations from paragraphs (1) (c) and (d) of this Article, the
party shall have the option of excluding from the definition of interest payment
any income referred to in those provisions from undertakings or entities
established within its territory where the investment in debt claims referred to in
paragraph (1) (a) of this Article of such entities has not exceeded 15% of their
assets. Thereof, by way of a paragraph of paragraph (4) of this Article, a
party shall have the option of excluding from the definition of interest
payment in paragraph (1) of this Article interest paid or credited to an account of
an entity referred to in Article 7 (2) of this Agreement which has not been qualified for
the option under Article 7 (3) of this Agreement and is established within its
territory, where the investment of such an entity in debt claims referred to in
paragraph (1) (a) of this Article has not exceeded 15% of its assets.
The exercise of such option by one contracting party shall be binding on the other
party-party.
(7) The percentage referred to in paragraph (1) (d) of this Article and paragraph (3) of
this Article shall be from 1 January, 2011 be 25%.
(8) The percentages referred to in paragraph (1) (d) of this Article and in paragraph (6)
of this Article shall be determined by reference to the investment policy as laid
down in the fund rules or instruments of incorporation of the undertakings or
entities concerned or, failing which, by reference to the current composition of the
assets of the undertakings or entities concerned.
Article 9 Retention Tax Revenue sharing
(1) Guernsey shall retain 25% of the retention tax deducted under this Agreement and
transfer the remaining 75% of the revenue to the other contracting party.
(2) Guernsey levying retention tax in accordance with Article 4 (4) of this Agreement
shall retain 25% of the revenue and transfer 75% to Portugal ishment to the
transfers carried out out to paragraph (1) of this Article.
(3) Such transfers shall take place for each year in one instalment at the latest within a
period of six months following the end of the tax year established by the laws of
Guernsey.
(4) Guernsey levying retention tax shall take the necessary measures to ensure the
proper functioning of the revenue sharing system.
Article 10 Elimination of double taxation
(1) A contracting party in which the beneficial owner is resident for tax purposes shall
ensure the elimination of any double taxation which might result from the
ed by Guernsey of the retention tax to which this Agreement refers in
accordance with the following provisions:
(i) if interest received by a beneficial owner has been subject to retention tax in
Guernsey, the other contracting party shall grant a tax credit equal to the
amount of the tax retained in accordance with its national law. Where this
amount exceeds the amount of tax due in accordance with its national law,
the other contracting party shall repay the excess amount of tax retained to
the beneficial owner;
(ii) if, in addition to the retention tax referred to in Article 4 of this Agreement,
interest received by a beneficial owner has been subject to any other type of
withholding/retention tax and the contracting party of residence for tax
purposes grants a tax credit for such withholding / retention tax in accordance
with its national law or double taxation conventions, such other
withholding/retention tax shall be credited before the procedure in sub-
paragraph (i) of this Article is applied.
(2) The contracting party which is the country of residence for tax purposes of the
beneficial owner may replace the tax credit mechanism referred to in paragraph
(1) of this Article by a refund of the retention tax referred to in Article 1 of this
Agreement.
Article 11 Transitional provisions for negotiable debt securities
(1) During the transitional period referred to in Article 14 of this Agreement, but until
31 December 2010 at the latest, domestic and international bonds and other
negotiable debt securities which have been first issued before 1 March 2001 or for
which the original looking forward prospectuses have been approved before that date by the
competent authorities within the roof of Council Directive 80 /390/EEC or by
the responsible authorities in third countries shall not be considered as debt claims
within the Article of Article 8 (1) (a) of this Agreement, provided that no further
issues of such negotiable debt securities are made on or after 1 March 2002.
However, should the transitional period continue beyond 31 December 2010, the
provisions of this Article shall only continue to apply in respect of such negotiable
debt securities:
-which contain gross up and early redemption clauses; and,
-where the paying agent is established in a contracting party's
retention tax and that paying agent pays interest to, or secures the payment of
Interest for the immediate benefit of a beneficial owner resident in the other
party-party.
If a further issue is made on or after 1 March 2002 of an underway
negotiable debt security issued by a Government or a related entity acting as a
public authority or whose role is recognised by an international treaty, as defined
in the Annex to this Agreement, the entire issue of such security, investigations of the
original issue and any further issue, shall be considered a debt claim within the
Thereof of Article 8 (1) (a) of this Agreement.
If a further issue is made on or after 1 March 2002 of an underway
negotiable debt security issued by any other issuer not covered by the second sub-
paragraph, such further issue shall be considered a debt claim within the whole
of Article 8 (1) (a) of this Agreement.
(2) Nothing in this Article shall prevent the contracting parties from taxing the income
from the negotiable debt securities referred to in paragraph (1) in accordance with
their national laws.
Article 12 Mutual agreement procedure
Where difficulties or doubts arise between the parties regarding the implementation or
interpretation of this Agreement, the contracting parties shall use their best endeavours
to resolve the matter by mutual agreement.
Article 13 Confidentiality
(1) All information provided and received by the competent authority of a contracting party
party shall be kept confidential.
(2) Information provided to the competent authority of a contracting party may not be
used for any purpose other than for the purposes of direct taxation without the
prior written consent of the other contracting party.
(3) Information provided shall be disclosed only to persons or authorities concerned
with the purposes of direct taxation, and used by such persons or authorities only
for such purposes or for oversight purposes, including the determination of any
appeal. For these purposes, information may be disclosed in public court
proceedings or in judicial proceedings.
(4) Where the competent authority of a contracting party considers that information
which it has received from the competent authority of the other contracting party
is likely to be useful to the competent authority of another Member State, it may
transmit it to the latter competent authority with the agreement of the competent
authority which supplied the information.
Article 14 Transitional Period
At the end of the transitional period as defined in Article 10 (2) of the Directive,
Guernsey shall cease to apply the retention tax and revenue sharing provided for in this
Agreement and shall apply in respect of the other contracting party the automatic
exchange of information provisions in the same manner as is provided for in Chapter II
of the Directive. If during the transitional period Guernsey elects to apply the automatic
exchange of information provisions in the same manner as is provided for in Chapter II
of the Directive, it shall be no longer apply the withholding / retention tax and the revenue
sharing provided for in Article 9 of this Agreement.
Article 15 Entry into force
Subject to the provisions of Article 17 of this Agreement, this Agreement shall come
into force on 1 January 2005.
Article 16 Termination
(1) This Agreement shall remain in force until terminated by either the contracting party.
(2) Non-deal party may terminate this Agreement by giving notice of
termination in writing to the other contracting party, such notice to specify the
circumstances leading to the giving of such notice. In such a case, this Agreement
shall cease to have effect 12 months after the serving of notice.
Article 17 Application and suspension of application
(1) The application of this Agreement shall be conditional on the adoption and
implementation by all the Member States of the European Union, by the United
States of America, Switzerland, Andorra, Liechtenstein, Monaco and San Marino,
and by all the relevant dependent and associated territories of the Member States
of the European Community, probability, of measures which conform with or are
equivalent to those contained in the Directive or in this Agreement, and providing
for the same dates of implementation.
(2) The contracting parties shall decide, by common accord, at least six months before
the date referred to in Article 15 of this Agreement, whether the condition set out
in paragraph (1) will be met having regard to the dates of entry into force of the
relevant measures in the Member States, the named third countries and the
dependent or associated territories concerned.
(3) Subject to the mutual agreement procedure provided for in Article 12 of this
Agreement, the application of this Agreement or parts enhancing may be suspended
by either a contracting party with immediate effect through notification to the other
Growing the leading to such notification should the Directive
cease to be applicable either temporarily or permanently in accordance with
European Community law or in the event that a Member State should suspend the
application of its implementing legislation. Application of the Agreement shall
sums up as soon as the promises leading to the suspension no longer apply.
(4) Subject to the mutual agreement procedure provided for in Article 12 of this
Agreement, either a contracting party may suspend the application of this
Agreement through notification to the other mixture the leading leading
to such notification in the event that one of the third countries or territories
referred to in paragraph (1) should cease to apply the measures
referred to in that paragraph. Suspension of application shall take place in the earlier
than two months after notification. Application of the Agreement shall resume the
soon as the measures are reinstated by the third country or territory in question.
Done in the World and English languages, all texts being equally authentic. --------
ANNEX