Key Benefits:
MOTION FOR RESOLUTION N. º13/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 entered into with the British Virgin Islands enshrines the
normative framework for this territory to adopt the said measures, particularly
those relating to taxation for retention by the paying agent on interest payments
to natural persons residing in Portuguese territory, and which constitutes an element
essential 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 Proposal for a Resolution:
Approves the Agreement between the Portuguese Republic and the Dependent Territory of the Crown
British from the British Virgin Islands, by Exchange of Letters, respectively from 29 of
December 2004 and of April 11, 2005, Relative to the Taxation of the Earnings of the
Savings, the text of which and its respective Annex, in the authenticated versions in the languages
Portuguese and English, if they publish in annex.
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 SAVINGS INCOME
A. Letter from the World's Republic
Sir,
I refer to the text of the proposed model " Agreement on the Taxation of Savings Income
between the Government of The British Virgin Islands and the World's Republic "
that was approved by the High Level Working Party (Taxation of Savings) of the
Council of Ministers of the European Union on 22 June 2004.
In view of the above mentioned text, I have the honour
to propose to you the Agreement on the taxation of savings income at Appendix 1
to this letter;
to propose that the said arrangements may come into effect on 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, which date shall be subject to the
conditions set out in Article 17 (2) of the Directive, subject to the notification to each
other that the internal constitutional changes for the coming into effect of these
arrangements are completed;
to propose our mutual commitment to enhancing at the earliest date with our said
internal constitutional mixture and to notify each other without delay through the
formal channels when such heated are completed.
I have the honour to propose that, if the above is acceptable to your Government, this
letter together with its Appendix 1 and your confirmation shall together receive our
mutual acceptance and making of the arrangements between Portugal and the British
Virgin Islands.
Please accept, Sir, the assurance of our highest consideration,
For the Government of the World Jewish Republic
Minister of Finance and Public Administration
Done at Lisbon, on, in the English and World languages in three copies.
B. Proposed reply from the Government of the British Virgin Islands
Sir,
I have the honour to acknowledge receipt of your letter of [] date, which reads as
follows:
" Sir,
I refer to the text of the proposed model " Agreement on the Taxation of Savings Income
between the Government of The British Virgin Islands and the World's Republic "
that was approved by the High Level Working Party (Taxation of Savings) of the
Council of Ministers of the European Union on 22 June 2004.
In view of the above mentioned text, I have the honour
to propose to you the Agreement on the taxation of savings income at Appendix 1
to this letter;
to propose that the said arrangements may come into effect on 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, which date shall be subject to the
conditions set out in Article 17 (2) of the Directive, subject to the notification to each
other that the internal constitutional changes for the coming into effect of these
arrangements are completed;
to propose our mutual commitment to enhancing at the earliest date with our said
internal constitutional mixture and to notify each other without delay through the
formal channels when such heated are completed.
I have the honour to propose that, if the above is acceptable to your Government, this
letter together with its Appendix 1 and your confirmation shall together receive our
mutual acceptance and making of the arrangements between Portugal and the British
Virgin Islands.
Please accept, Sir, the assurance of our highest consideration "
I am able to confirm that the Government of the British Virgin Islands is in agreement
with the contents of your letter dated [...].
Please accept, Sir, the assurance of my highest consideration,
[name, title and signature of the person in the British Virgin Islands competent for
signature]
Done at [], on in the English and World languages, in three copies.
AGREEMENT ON THE TAXATION OF SAVINGS INCOME BETWEEN THE
BRITISH VIRGIN ISLANDS AND THE WORLD REPUBLIC
WHEREAS:
1. Article 17 of Directive 2003 /48/EC (referred to as the "the Directive") of
the Council of the European Union (referred to as "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 banned with the Directive with effect from 1 st 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 British Virgin Islands ("BVI") is not a member of the European Union and
not within the European Union fiscal territory, but the Government of the United
Kingdom has requested the Government of the BVI to voluntarily apply the
the provisions of the Directive;
3. The BVI 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 BVI has agreed to apply a withholding tax with effect from 1 st January, 2005,
provided the European Union Member States have adopted the laws, regulations,
and administrative provisions necessary to be necessary with the Directive, and the
requirements of Article 17 of the Directive;
5. The BVI 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;
6. The BVI 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.
NOW THEREFORE, the Government of the BVI and the Government of the
World Republic (opposition referred to as a "contracting party" or the "
parties " as the context requires), have agreed to agree this 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 the BVI in the same manner as to the
competent authority of a Member State;
(b) the application by the BVI, during the transitional period defined in Article
10 of the Directive, of a withholding 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 the
BVI to the competent authority of Portugal in accordance with Article 13 of
the Directive;
(d) the transfer by the competent authority of the BVI to the competent authority
of Portugal of 75% of the revenue of the withholding tax in respect of
interest payments made by a paying agent established in the BVI to an
individual resident in Portugal.
Article 1 Definitions
For the purposes of this Agreement, the term:
(a) "competent authority", when applied to the contracting parties means,
(i) in the case of the BVI, the Financial Secretary; and
(ii) in the case of Portugal, the Minister of Finance or an authorised
representative;
(b) "Portugal" means the territory of the Portuguese Republic situated in the
European Continent, the archipelagos of sovereignty and Madeira, the territorial sea
and inland waters served as well as the continental shelf and any other area
wherein the World State exercises sovereign rights or jurisdiction in
accordance with the rules of international law;
(c) "residence", in relation to a beneficial owner, means the country or territory
where his permanent address is located, subject to the conditions set out in
Article 7 (3) of this Agreement;
(d) "UCITS" means an undertaking for collective investment in transferable
securities that is recognised in accordance with the Directive of the Council of
the European Union known as the Council Directive 85 /611/EEC of 20 th
December, 1985 on the co-ordination of laws, regulations and administrative
provisions relating to undertakings for collective investment in transferable
securities.
Article 2 Withholding of Tax by Paying Agents
Interest payments as defined in Article 9 of this Agreement which are made by a
paying agent established in the BVI to beneficial owners within the course of
Article 6 of this Agreement who are residents of Portugal shall, subject to Article
4 of this Agreement, be subject to a withholding tax from the amount of interest
payment during the transitional period referred to in Article 15 of this Agreement
starting at the date referred to in Article 16 of this Agreement. The rate of
withholding tax shall be 15% during the first three years of the transitional period,
20% for the subsequent three years and 35% thousand.
Article 3 Reporting of Information by Paying Agents
(1) Where interest payments, as defined in Article 9 of this Agreement, are made by a
paying agent established in Portugal to beneficial owners, those defined in Article 6
of this Agreement, who are residents of the BVI, or where the provisions of
Article 4 (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 7 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 interests, and
(d) information concerning the interest payment specified in Article 5 (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 paid to the beneficial owner
within the tax year,
and Portugal shall be charged with paragraph (2) of this Article.
(2) Within six months following the end of their tax year, the competent authority of
Portugal shall communicate to the competent authority of the BVI, automatically,
the information referred to in paragraph 1 (a)-(d) of this Article, for all interest
payments made during that year.
Article 4 Exceptions to the withholding tax procedure
(1) The BVI when levying a withholding tax in accordance with Article 2 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 withheld:
(a) a procedure which allows the beneficial owner as defined in Article 6 of this
Agreement to avoid the withholding tax specified in Article 2 of this
Agreement by expressly following 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 withholding tax shall not be held 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
(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; and
(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, shall bear the date of request as well as the date of issue and shall be
applicable in relation to payments made after that date of request.
(3) Where paragraph (1) (a) of this Article applies, the competent authority of the BVI
in which the paying agent is established shall communicate the information
referred to in Article 3 (1) of this Agreement to the competent authority of Portugal
the 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 5 Basis of assessment for withholding tax
(1) A paying agent established in the BVI shall levy withholding tax in accordance
with Article 2 of this Agreement as follows:
(a) in the case of an interest payment within the proceedings of Article 9 (1) (a) of
this Agreement: on the amount of interest paid or credited;
(b) in the case of an interest payment within the proceedings of Article 9 (1) (b) or
(d) of this Agreement: on the amount of interest or income or income referred to in (b)
or (d) of that sub-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 the certified by the paying agent to its competent authority;
(c) in the case of an interest payment within the proceedings of Article 9 (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 9 (4) of this
Agreement: on the amount of interest attributable to each of the members of
the entity referred to in Article 8 (2) of this Agreement who meet the
conditions of Article 6 (1) of this Agreement; and
(e) where the BVI exercises the option under Article 9 (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
withholding 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 a
of the debt-claim for the entire period of its existence, unless the latter provides
evidence of the date of the acquisition.
(3) The banned of withholding tax by the BVI shall not be banned Portugal from
taxing income in accordance with its national law.
(4) During the transitional period, the BVI may provide that an economic operator
paying interest to, or securing interest for, an entity referred to in Article 8 (2) of
this Agreement in the other contracting party shall be considered the paying agent
in place of the entity and shall levy the withholding 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 8 (2) of this Agreement.
Article 6 Definition of "beneficial owner"
(1) For the purposes of this Agreement, "beneficial owner" means an individual who
ans an interest payment or any individual for an individual 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 the beneficial
owner when he
(a) acts as a paying agent within the course of Article 8 (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 the BVI, or an entity referred to in
Article 8 (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; or
(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 7 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 st 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 10 th
June, 1991 in the case of Portugal
or equivalent legislation in the case of the BVI 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 st 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,
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 st 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 the BVI;
(b) for contractual relations entered into, or transactions carried out in the
against a degree of contractual relations, on or after 1 st January, 2004, the paying
agent 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 8 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;
(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 the BVI.
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 the referred to in sub-paragraph (c) of paragraph (2). The
exercise of this option shall require a certificate to be issued by the contracting
party in which the entity is established and opposition to the economic operator by
that entity. The party's party shall lay down the detailed rules for this option
entities established in their 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 9 Definition of "interest payment"
(1) For the purposes of this Agreement, "interest payment" means:
(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 sub-paragraph (a);
(c) income deriving from interest payments either directly or through an entity
referred to in Article 8 (2) of this Agreement, distributed by
(i) an UCITS authorised in accordance with EC Directive 85 /611/EEC of
the Council; or
(ii) an equivalent undertaking for collective investment established in the
BVI;
(iii) entities which qualify for the option under Article 8 (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 thereof and outside the BVI; and
(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 to be referred to in sub-paragraph
(a):
(i) an UCITS authorised in accordance with Directive 85 /611/EEC; or
(ii) an equivalent undertaking for collective investment established in the
BVI;
(iii) entities which qualify for the option under Article 8 (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 the BVI.
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 derived from
from interest payments within the banned of paragraph (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 8 (2) of this Agreement, such
entity not having qualified for the option under Article 8 (3) of this Agreement,
such interest shall be considered an interest payment by such entity.
(5) The Amendments (1) (b) and (d) of this Article, a contracting 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 paragraph (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.
Banned, by way of banned from 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 8 (2) of this Agreement which has not qualified for the option
under Article 8 (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 from 1 st 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 10 Withholding tax revenue sharing
(1) The BVI shall retain 25% of the withholding tax deducted under this Agreement
and transfer the remaining 75% of the revenue to Portugal.
(2) The BVI levying withholding tax in accordance with Article 5 (4) of this
Agreement shall retain 25% of the revenue and transfer 75% to Portugal
pursuant to the transfers carried 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
the BVI.
(4) The BVI levying withholding tax shall take the necessary measures to ensure the
proper functioning of the revenue sharing system.
Article 11 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
Shall be held by the BVI of the withholding tax to which this Agreement refers in
accordance with the following provisions;
(a) if interest received by a beneficial owner has been subject to withholding tax
in the BVI, Portugal shall be 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, Portugal shall repay
the excess amount of tax withheld to the beneficial owner;
(b) if, in addition to the withholding tax referred to in Article 5 of this
Agreement, interest received by a beneficial owner has been subject to any
other type of withholding tax and the contracting party of residence for tax
purposes grants a tax credit for such withholding tax in accordance with its
national law or double taxation conventions, such other withholding tax shall
be credited before the procedure in sub-paragraph (a) 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 withholding tax referred to in Article 5 of this
Agreement.
Article 12 Transitional provisions for negotiable debt securities
(1) During the transitional period referred to in Article 15 of this Agreement, but until
31 st December, 2010 at the latest, domestic and international bonds and other
negotiable debt securities which have been first issued before 1 st March, 2001 or
for which the original originating prospectuses have been approved before that date by
the competent authorities within the course of Council Directive 80 /390/EEC or
by the responsible authorities in third countries shall not be considered as a debt
claims within the opposition of Article 9 (1) (a) of this Agreement, provided that in the
further issues of such negotiable debt securities are made on or after 1 st March,
2002. However, should the transitional period continue beyond 31 st December,
2010, the provisions of this Article shall only continue to apply in respect of such
negotiable debt securities
(a) which contain gross up and early redemption clauses; and
(b) where the paying agent as defined in Article 8 of this Agreement is
established in a contracting party withholding 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 contracting party.
If a further issue is made on or after 1 st March, 2002 of an estimated
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 9 (1) (a) of this Agreement.
If a further issue is made on or after 1 st March, 2002 of an estimated
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 9 (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 13 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 14 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 shall 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 15 Transitional Period
At the end of the transitional period as defined in Article 10 (2) of the Directive the
BVI shall cease to apply the withholding tax and revenue sharing provided for in
this Agreement and shall apply in respect of Portugal the automatic exchange of
information provisions in the same manner as is provided for in Chapter II of the
Directive. Without prejudice to Article 4 of this Agreement, if during the
transitional period the BVI 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 no longer apply the withholding tax and the revenue sharing provided for in
Article 10 of this Agreement.
Article 16 Entry into force
This Agreement shall enter into force on the thirtieth day after the latter of the dates
on which the respective governments have notified each other in writing that the
required constitutionally required have been kissed with, and its provisions
shall have effect from the date from which the Directive is applicable according to
paragraphs 2 and 3 of Article 17 of the Directive.
Article 17 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 18 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) Subject to the mutual agreement procedure provided for in Article 13 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.
(3) Subject to the mutual agreement procedure provided for in Article 13 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: list of related entities
The
List of Related entities referred to in article 12
For the purposes of Article 12, the following entities will be considered to be a " related
entity acing as a public authority or whose role is recognised by an international
treaty ":
ENTITIES WITHIN THE EUROPEAN UNION:
Belgium
Vlaams Gewest (Flemish Region)
Région wallonne (Walloon Region)
Région bruxelloise / Brussels Gewest (Brussels Region)
Communauté française (French Community)
Vlaamse Gemeenschap (Flemish Community)
Deutschsprachige Gemeinschaft (German-speaking Community)
Spain
Xunta de Galicia (Regional Executive of Galicia)
Joined by Andalucía (Regional Executive of Andalusia)
Extreme Board of Extremadura (Regional Executive of Extremadura)
Joint of Castilla-La Mancha (Regional Executive of Castilla-La Mancha)
Joint of Castilla-León (Regional Executive of Castilla-León)
Gobierno Foral de Navarra (Regional Government of Navarre)
Govern of les Illes Balears (Government of the Balearic Islands)
Generalitat de Catalunya (Autonomous Government of Catalonia)
Generalitat de Valencia (Autonomous Government of Valencia)
Diputación General de Aragón (Regional Council of Aragon)
Gobierno de las Islas Canarias (Government of the Canary Islands)
Gobierno de Murcia (Government of Murcia)
Gobierno de Madrid (Government of Madrid)
Gobierno de la Comunidad Autónoma del País Vasco / Euzkadi (Government of the
Autonomous Community of the Basque Country)
Diputación Foral de Guipúzcoa (Regional Council of Guipúzcoa)
Diputación Foral of Vizcaya / Bizkaia (Regional Council of Vizcaya)
Diputación Foral de Alava (Regional Council of Alava)
Ayuntamiento de Madrid (City Council of Madrid)
Ayuntamiento de Barcelona (City Council of Barcelona)
Cabildo Insular of Gran Canaria (Island Council of Gran Canaria)
Capabildo Insular de Tenerife (Island Council of Tenerife)
Institute of Official Credit Institution (Public Credit Institution)
Catalán Institute of Finanzas (Finance Institution of Catalonia)
Valencian Institute of Finanzas (Finance Institution of Valencia)
Greece
Оργανισμός πηλεπικοινωνιών Ελλάδος (National Telecommunications Organisation)
Оργανισμός Σιδηροδρόμων Ελλάδος (National Railways Organisation)
Δημόσια Επιχείρηση ΗλεκτρισμοΩ (Public Electricity Company)
France
La Caisse d' amortissement de la dette sociale (CADES) (Social Debt Redemption
Fund)
L' Agence française de développement (AFD) (French Development Agency)
Réseau Ferré de France (RFF) (French Rail Network)
Caisse Nationale des Autoroutes (CNA) (National Motorways Fund)
Assistance publique Hôpitaux de Paris (APHP) (Paris Hospitals Public Assistance)
Charbonnages de France (CDF) (French Coal Board)
Entreprise minière et chimique (EMC) (Mining and Chemicals Company)
Italy
Regions
Provinces
Municipalities
Cassa Depositi e Prestiti (Deposits and Loans Fund)
Latvia
Pašvaldības (Local government)
Poland
gminy (communes)
powiaty (districts)
województwa (provinces)
związki gmin (associations of communes)
powiatów (association of districts)
województw (association of provinces)
miasto stołeczne Warszawa (capital city of Warsaw)
Agencja Restrukturyzacji i Modernizacji Rolnictwa (Agency for Restructuring and
Modernisation of Agriculture)
Agencja Nieruchomości Rolnych (Agricultural Property Agency)
Portugal
Autonomous Region of Madeira (Autonomous Region of Madeira)
Autonomous Region of the Azores (Autonomous Region of surrounding)
Municipalities
The
mis the obce (municipalities)
Železnice Slovenskej republiky (Slovak Railway Company)
Štátny fond cestného hospodárstva (State Road Management Fund)
Slovenské elektrárne (Slovak Power Plants)
Vodohospodárska výstavba (Water Economy Building Company)
INTERNATIONAL ENTITIES:
European Bank for Reconstruction and Development
European Investment Bank
Asian Development Bank
African Development Bank
World Bank / IBRD / IMF
International Finance Corporation
Inter-American Development Bank
Council of Europe Social Development Fund
EURATOM
European Community
Corporación Andina de Fomento (CAF) (Andean Development Corporation)
Eurofima
European Coal & Steel Community
Nordic Investment Bank
Caribbean Development Bank
The provisions of Article 12 are without prejudice to any international obligations that
the Contracting Parties may have entered into with respect to the above mentioned
international entities.
ENTITIES IN THIRD COUNTRIES:
The entities that meet the following criteria:
1) The entity is exploring considered to be a public entity according to the national
criteria.
2) Such public entity is a non-market producer which adheres and finances a
group of activities, providing providing non-market goods and services, intended
for the benefit of the community and which are effectively controlled by general
government.
3) Such public entity is a large and regular issuer of debt.
4) The State concerned is able to guarantee that such public entity will not exercise
early redemption in the event of gross-up clauses.
AGREEMENT
IN THE FORM OF AN EXCHANGE OF LETTERS
ON THE TAXATION OF SAVINGS INCOME
A. Charter of the Portuguese Republic
Excelent Lord,
I have the honour to refer to the text of the proposed model of " Agreement concerning the
taxation of income from savings between the British Virgin Islands and the Republic
Portuguese ", approved by the High-Level Working Group (Taxation of Savings)
of the Council of Ministers of the European Union of June 22, 2004.
In the face of the said text, I have the honour of
propose to V. Ex the "Agreement on the taxation of savings income"
constant from Appendix 1 to this letter,
to propose that the said agreement to enter into force on the date of implementation of the Directive
2003 /48/CE of the Council of June 3, 2003 on taxation of the
income from savings in the form of interest, the date of which is subject to the provisions of
n Article 17º (2) of the Directive, subject to the reciprocal notification that they have been
satisfied the internal constitutional formalities relating to the entry into force of the
present agreement;
To propose the mutual commitment to ultimarms as soon as possible
such internal constitutional formalities and of proceeding without delay to the
reciprocal notification through the formal channels that these formalities are
completed.
I have the honour to propose, if the above is acceptable by the Government of V. Ex. th, that the
this letter with the respective Appendix 1 and your confirmation constitute, in
set, the reciprocal acceptance and the conclusion of the Agreement between Portugal and the Islands
British Virgins.
Want to accept, Excellent Lord, the protests of our highest regard,
By the Government of the Portuguese Republic
Minister of Finance and Public Administration
Made in Lisbon, in, in the Portuguese and English languages, in three
exemplars.
B. Proposal for a response from the Government of the British Virgin Islands
Excelent Lord,
I have the honour to acknowledge the receipt of your letter of Your Excellency with date of [...], of the
following content:
" Excellent Lord,
I have the honour to refer to the text of the model proposal for " Relative Agreement
to the taxation of income from savings between the British Virgin Islands and the
Portuguese Republic ", approved by the High-Level Working Group
(Taxation of Savings) of the Council of Ministers of the European Union, 22 of
June 2004.
In the face of the said text, I have the honour of
to propose V. Ex. the " Agreement on taxation of income of the
savings " constant from Appendix 1 to this letter,
to propose that the said agreement to enter into force on the date of implementation of the Directive
2003 /48/CE of the Council of June 3, 2003 on taxation of the
income from savings in the form of interest, the date of which is subject to the
provisions of Article 17º (2) of the Directive, subject to the notification
reciprocating that the internal constitutional formalities have been met
relating to the entry into force of this Agreement;
propose the mutual commitment of ultimarms with the greatest possible brevity
the said internal constitutional formalities and of proceeding without
delay to the reciprocal notification through the formal channels of which such
formalities are completed.
I have the honour to propose, if the above is acceptable by the Government of V. Ex. th,
that the present letter with the respective Appendix 1 and your confirmation
constitute, together, the reciprocal acceptance and the conclusion of the Agreement between
Portugal and the British Virgin Islands.
Want to accept, Excellent Lord, the protests of our highest
consideration. "
I can confirm that the Government of the British Virgin Islands is in agreement with the content
of the letter of V. Ex. th, from [...].
Want to accept, Excellent Lord, the protests of my highest
consideration,
[name, title and signature of individuality in the British Virgin Islands
competent for the signature]
Made in [...], in the Portuguese and English languages, in three exemplars.
AGREEMENT ON THE TAXATION OF INCOME OF THE
SAVINGS BETWEEN THE BRITISH VIRGIN ISLANDS AND THE REPUBLIC
PORTUGUESE
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. The British Virgin Islands are not a member of the European Union nor are they situated in the
tax territory of the EU, however the United Kingdom Government has requested the
Government of the British Virgin Islands voluntary application of the provisions of the
Directive;
3. The British Virgin Islands note that, if the ultimate goal of the
EU Member States to allow for effective taxation of interest
in the Member State of tax residence of the beneficial owner through the exchange of
information among them regarding these interest payments, three states-
Members, to know Austria, Belgium and Luxembourg, will not be required to
exchange information during a transition period but will apply a withholding
source to the income from savings covered by the Directive;
4. The British Virgin Islands have agreed to apply a withholding tax with
effects as of January 1, 2005 since the Member States of the Union
European have adopted the laws, regulations and
administrative necessary to comply with the Directive, and have been
generously complied with the requirements of Article 17 of the Directive;
5. The British Virgin Islands have agreed to apply the automatic exchange of
information in the moulds provided for in Chapter II of the Directive from the end of the
transitional period as defined in Article 10º (2) of the Directive;
6. The British Virgin Islands have legislation in respect of bodies of
collective investment that is presumed equivalent as to its effect to
EC legislation referred to in Articles 2 and 6 of the Directive.
CONSEQUENTLY, the Government of the British Virgin Islands and the Government of the
Portuguese Republic (hereinafter referred to as "Contracting Party" or " Parties
Contractors ", as a result of the context) agreed to conclude the following agreement
which contains obligations that bind solely to the Contracting Parties and provides for
a) the automatic exchange of information by the competent authority of Portugal to the
competent authority of the British Virgin Islands in the planned moulds
concerning the competent authority of a Member State;
b) the application by the British Virgin Islands, during the transitional period
defined in Article 10º of the Directive, of a withholding tax from the
same date and under the same conditions as those set out in Articles 11º and
12º of the Directive;
c) the automatic exchange of information by the competent authority of the Islands
British Virgins to the competent authority of Portugal of harmony with the
Article 13 of the Directive;
d) the transfer by the competent authority of the British Virgin Islands to
the competent authority of Portugal of 75% of the revenue from the tax of
retention in relation to interest payments made by an agent
payer established in the British Virgin Islands to a natural person
resident in Portugal.
Article 1º Definitions
For effects of the present Agreement, the expression:
a) "competent authority", when applied to the Contracting Parties, means:
i) in the case of the British Virgin Islands, the Financial Secretary; and
ii) in the case of Portugal, the Minister of Finance or a representative
authorized;
b) "Portugal" means the territory of the Portuguese Republic located in the
continent of Europe, the archipelagos of the Azores and Madeira, the waters
interiors and the respective territorial sea, as well as the continental shelf
and any other space, where the Portuguese state exercises rights to
sovereignty or jurisdiction, according to the standards of international law;
c) "residence", in respect of an effective beneficiary, means the country or the
territory where its permanent abode is located, without prejudice to the provisions of
in Article 7º (3) of this Agreement;
d) "UCITS" means a collective investment body in values
authorised securities in harmony with the EU Council Directive
as Directive 85 /611/CEE of the Council of December 20, 1985,
on the coordination of the laws, regulations and
administrative in the matter of collective investment bodies in
securities.
Article 2º Retention of tax by paying agents
The interest payments set out in Article 9º of this Agreement made by
a paying agent established in the British Virgin Islands to beneficiaries
actual, within the meaning of Article 6 of this Agreement, which are residents of
Portugal shall, without prejudice to the provisions of Article 4 of this Agreement,
subject to a withholding tax in relation to the amount of interest paid during
the transitional period referred to in Article 15 of this Agreement as of the date
referred to in Article 16 of this Agreement. The rate of the withholding tax shall
be from 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 3º Communication of information on the part of paying agents
1. Where interest payments are made, set out in Article 9º of the
this Agreement, by a paying agent established in Portugal to beneficiaries
actual, as defined in Article 6º of this Agreement, which are residents
of the British Virgin Islands, or where the provisions of the paragraph are applied. a) from the
n Article 4º (1) of this Agreement, the paying agent shall communicate to the
respective competent authority:
a) the identity and residence of the beneficial owner, determined in
compliance with Article 7º of this Agreement;
b) name or denomination and address of the paying agent;
c) account number of the beneficial owner or, in his absence, identification of the
credit generator credit; and
d) information in respect of the interest payments specified in paragraph 1 of the
Article 5º 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 paid to the beneficial owner during the tax year,
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 the Islands
British Virgins, automatically, the information referred to in points (s) a) a d) from the
n. 1 of this Article, in relation to all interest payments made
during that year.
Article 4º Exceptions to the withholding tax system
1. When applying the withholding tax in accordance with Article 2º of the
present Agreement, the British Virgin Islands shall establish one, or both,
of the following procedures so that the actual beneficiaries can apply for
non-application of such retention:
a) a procedure that allows the beneficial owner, with the definition
which is given to you by Article 6º of this Agreement, avoid the tax of
retention specified in Article 2º of this Agreement, authorizing
expressly its paying agent to communicate the relative information
to the interest payments to the competent authority of the Contracting Party of
establishment of the paying agent. Such authorization will cover all the
interest payments made to the beneficial owner by that agent
payer;
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 or denomination, address and tax identification number, or other,
or, in the absence of these, date and place of birth of the beneficial owner;
ii) name or denomination and address of the paying agent; and
iii) account number of the beneficial owner or, in his absence, 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, indicating the date of application as well as the date
of the issue and shall be applicable in respect of payments made after the date of
request.
3. When to apply to ( a) of paragraph 1 of this Article, the competent authority
of the British Virgin Islands where the paying agent is established must
communicate the information referred to in Article 3º (1) of this Agreement to
competent authority of Portugal as a country of residence of the beneficiary
effective. This communication will be automatic and will take place at least once per
year, in the six months subsequent to the term of the fiscal year defined in the
legislation of the Contracting Party, in relation to all interest payments
performed during that year.
Article 5º Base of incidence of withholding tax
1. A paying agent established in the British Virgin Islands shall apply the
withholding tax on harmony with Article 2º of this Agreement of the following
shape:
a) in the case of a payment of interest within the meaning of the ( a) of the n ° 1 of the
Article 9º of this Agreement: on the amount of interest paid or taken to
credit;
b) in the case of a payment of interest within the meaning of the ( b) or d) of heading No. 1
of Article 9º 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, refund or rescue, certified
by the paying agent to the respective competent authority;
c) in the case of a payment of interest within the meaning of the ( c) of the n ° 1 of the
Article 9º 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 Article 9º (4) of the Article
present Agreement: on the amount of interest attributable to each of the
members of the entity referred to in Article 8º (2) of this Agreement which
meet the conditions of Article 6º (1) of this Agreement; and
e) whenever the British Virgin Islands resort to the expected possibility in the
n Article 9º (5) of this Agreement: on the amount of interest
annualized.
2. For the purposes of the items 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 withholding tax by the British Virgin Islands does not preclude
Portugal to tax the income in accordance with its domestic law.
4. During the transition period, the British Virgin Islands can predict that a
economic operator who pays interest, or assigns the payment of interest, to a
entity referred to in Article 8º (2) of this Agreement in the other Party
Contractor is deemed to be the paying agent in place of the entity and
apply the withholding tax on these interest, unless the entity has
formally accept that your name and address, as well as the total amount of the
interest paid to you or assigned, are communicated in harmony with the
last subparagraph of Article 8º (2) of this Agreement.
Article 6º 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) act on the quality of paying agent within the meaning of Article 8 (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
Council Directive 85 /611/CEE or an investment body
equivalent collective established in the British Virgin Islands, or one of the
entities referred to in Article 8º (2) of this Agreement and, in this
last case, reveals the name and address of that entity to the operator
economic responsible for the payment of interest, and the latter communicates
next such information to the competent authority of your Party
Contractor 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 ( a) nor the point b) of paragraph 1 of the
this Article, the paying agent shall take the reasonable steps to
determine the identity of the beneficial owner. If you cannot identify the
beneficial owner, the paying agent shall consider the natural person concerned
as the beneficial owner.
Article 7º 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 purpose of the present
Agreement. Such procedures must comply with the established minimum standards
in paragraphs 2 and 3.
2. The paying agent shall determine the identity 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, namely:
a) for contractual relations established before January 1, 2004, the
payer agent shall determine the identity of the beneficial owner,
expressed by its name or denomination and address, on the basis of the
information available to it, particularly in application of the regulations
in force in its State of establishment and of the Council Directive
91 /308/CEE of June 10, 1991 in the case of Portugal or legislation
equivalent in the case of the British Virgin Islands concerning the prevention of the
use of the financial system for the purpose of money laundering;
b) for established contractual relationships, or for transactions carried out
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 or denomination, address and, in case there is, identification number
tax allocated by the Member State of residence for tax purposes. These
elements must be determined on the basis of the passport or the ticket of
official identity presented by the beneficial owner. If not the record of the
passport nor the official identity card, the address is determined
on the basis of any other supporting document presented by the
beneficial owner. If the tax identification number does not appear in the
passport, official identity card or any other
supporting document, 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 beneficiary
effective, determined on the basis of your passport or identity card
officer.
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 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
Council Directive 91 /308/CEE in the case of Portugal or legislation
equivalent in the case of the British Virgin Islands;
b) for established contractual relationships, or for transactions carried out
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 8º 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) is a legal person, with the exception of legal persons
referred to in paragraph 5 of this Article;
b) your profits are taxed in application of common law provisions
in matters of corporate taxation; or
c) it is an authorized UCITS of harmony with the willing in
Directive 85 /611/CEE of the Council or of an investment body
equivalent collective established in the British Virgin Islands.
An economic operator who pays or assigns the payment of interest to a
entity of this type established in the other Contracting Party that is considered
as a paying agent under the terms of this paragraph shall communicate the name or
denomination 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, which will then communicate this information to the authority
competent of the Contracting Party of establishment of the said entity.
3. The entity referred to in paragraph 2 of this Article shall, however, have the possibility
of being treated for the purposes of this Agreement as an UCITS or body
equivalent referred to in ( c) of paragraph 2. The resource to this possibility will be
object of a certificate issued by the Contracting Party of establishment of the
entity and delivered by that entity to the economic operator. The Contracting Party
must set the specific rules regarding that possibility for the entities
established in their territory.
4. Case the economic operator and the entity referred to in paragraph 2 of this Article
are established in the same Contracting Party, the latter shall take the
measures necessary to ensure that the entity complies with the provisions of the
present Agreement when acting in the quality of paying agent.
5. Legal persons excluded from the application of the paragraph a) of paragraph 2 of the present
Article are:
a) in Finland: avoin yhtio (Ay) and kommandiittiyhtio (Ky) /oppet bolag and
kommanditbolag;
b) in Sweden: handelsbolag (HB) and kommanditbolag (KB).
Article 9º Definition of "payment of interest"
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 ransom of the credits referred to in paragraph a) ;
c) income from interest payments, whether these are
performed directly, either through an entity referred to in the
n Article 8º (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 the
British Virgin Islands;
iii) entities that benefit from the possibility provided for in paragraph 3 of the
Article 8º of this Agreement;
iv) collective investment bodies established outside the territory a
that applies to the Treaty establishing the European Community by force
of its Article 299 and outside of the British Virgin Islands; and
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 paragraph a) :
i) an authorized UCITS of harmony with the provisions of the
Council Directive 85 /611/CEE;
ii) an equivalent collective investment body established in the
British Virgin Islands;
iii) entities that benefit from the possibility provided for in paragraph 3 of the
Article 8º of this Agreement;
iv) collective investment bodies established outside the territory a
that applies to the Treaty establishing the European Community by force
of your Article 299 ° and outside the British Virgin Islands.
However, the Contracting Parties may limit the inclusion of the income referred to in the
point ( d) of paragraph 1 of this Article in the definition of interest only in the proportion in
that these yields correspond to income that, directly or indirectly,
provenham of a payment of interest within the meaning of the ( a) and b) of paragraph 1 of the
present Article.
2. As far as the points are concerned 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. As far as the point is concerned d) of paragraph 1 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 8º of this Agreement Interest, as set out in paragraph 1 of the present
Article, and that entity does not benefit from the possibility provided for in paragraph 3 of the
Article 8º of this Agreement, such interest shall be considered as a
payment of interest carried out by that entity.
5. As far as the points are concerned 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 the provisions of the c) and d) of paragraph 1 of this Article, the
Contracting Parties 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 paragraph a) of paragraph 1 of this Article do not exceed 15% of the
your asset. Similarly, by way of derogation from the provisions of paragraph 4 of the present
Article, the Contracting Parties may decide to exclude from the definition of payment of
constant interest in paragraph 1 of this Article the interest paid or credited to a
account of an entity referred to in Article 8º (2) of this Agreement which does not
benefit from the possibility provided for in Article 8º (3) of this Agreement and
is established in its territory, whenever the investments of these entities
in the credits referred to in paragraph a) of paragraph 1 of this Article do not exceed 15%
of your asset.
The use of this option by a Contracting Party makes it binding on the
another Contracting Party.
7. As of January 1, 2011, the percentage referred to in para. d) of paragraph 1 and in the
n. 3 of this Article shall pass from 25%.
8. The percentages referred to in paragraph d) of paragraph 1 of this Article and in paragraph 6 of the
this Article shall 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 10º Breakdown of revenue from withholding tax
1. The British Virgin Islands must withhold 25% percent of the withholding tax deducted from the
shelter of this Agreement and transfer the remaining 75% of these revenues to
Portugal.
2. When applying a withholding tax in harmony with Article 5º (4) of the
This Agreement, the British Virgin Islands shall conserve 25% of its
revenue and transfer 75% of these revenues to Portugal in the proportion of the
transfers made pursuant to 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 the British Virgin Islands.
4. When applying a withholding tax, the British Virgin Islands must adopt
the necessary measures to ensure the proper functioning of the system of
distribution of revenue.
Article 11º 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 the British Virgin Islands of the withholding tax referred to in the present
Agreement in harmony with the following provisions:
a) if the interest received by an actual beneficiary has been subject to
withholding tax in the British Virgin Islands, Portugal should grant-
To you a tax credit equal to the amount of the retention accordingly
with their internal right. In the case that the amount of this exceeds the amount
of the tax due in accordance with its domestic law, Portugal
should reimburse the beneficial owner the amount of withholding tax
paid in excess;
b) if, to be added to the withholding tax referred to in Article 5º of the present
Agreement, the interest received by an effective beneficiary has been
subject to any other type of withholding tax and the Contracting Party of
tax residence grant a tax credit for this withholding tax
conform to your domestic law or conventions on double
taxation, this other withholding tax should be credited before it is
applied for the procedure set out in the paragraph a) of this Article.
2. The Contracting Party of tax residence of the beneficial owner may replace the
tax credit mechanism provided for in paragraph 1 of this Article by
a refund of the withholding tax referred to in Article 5º of the present
Agreement.
Article 12º Transitional provisions for negotiable debt securities
1. During the period of transition referred to in Article 15º of this Agreement, but until
December 31, 2010 at the latest, national and international obligations and
other negotiable debt securities whose initial issuance is prior to March 1
of 2001 or whose initial prospectuses have been targeted before that date by the
competent authorities within the meaning of Directive 80 /390/CEE of the Council or
by the responsible authorities of third countries should not be considered
credits within the meaning of paragraph a) of Article 9º (1) of this Agreement, since
that do not undertake any new issuance of these tradable debt securities to
departure from March 1, 2002. However, should the transition period continue to
invigorate after December 31, 2010, the provisions of this Article only
will continue to apply to marketable debt securities:
a) that include "totality" and early-redemption clauses; and
b) in cases in which the paying agent, as defined in Article 8º of the present
Agreement, be established in a Contracting Party that applies the tax
of retention and in which such paying agent pays interest or ascribe to the
payment of interest in immediate advantage of an effective beneficiary
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 the point a) of Article 9º (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 the ( a) of Article 9º (1) 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 13º Procedure of mutual agreement
Whenever they overcome between the Parties difficulties or doubts regarding the
application or interpretation of this Agreement, the Contracting Parties
diligencies in the sense of solving the issue by mutual agreement.
Article 14º 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.
3. The information provided should only be disclosed to persons or authorities
interested in the purpose of direct taxation, and used by such persons or
authorities only for these purposes or for supervisory purposes, which may
include the introduction of an eventual appeal. For this purpose, the information may
be disclosed in a public hearing or in a 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 15º Transition period
At the end of the transitional period defined in Article 10 (2) of the Directive, the
British Virgin Islands should stop applying the withholding tax and the
apportionment of the revenue provided for in this Agreement and shall apply
relatively to Portugal the provisions in the subject of automatic exchange of
information in the moulds provided for in Chapter II of the Directive. Without prejudice to the
provisions of Article 4º of this Agreement, if, during the transitional period, the
British Virgin Islands to opt out of enforcing provisions on trade
automatic information in the moulds provided for in Chapter II of the Directive,
will cease to apply the withholding tax and the allocation of the revenue provided in the
Article 10º of this Agreement.
Article 16º Entry into force
This Agreement shall enter into force on the thirtieth day after the last of the dates on which
the respective Governments notify each other, in writing, that the respective
constitutionally required formalities have been met, and its provisions
produce effect from the date on which the Directive is applicable in the terms of the
provisions of Article 17º and 3 of Article 17º of the Directive.
Article 17º 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 18º 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,
Switzerland, Andorra, Liechtenstein, Monaco and Saint 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. Subject to the mutual agreement procedure provided for in Article 13º 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.
3. Subject to the mutual agreement procedure provided for in Article 13º 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 both texts equally authentic.
/Annex: list of related entities
Annex: List of the related entities referred to in Article 12º
For the purposes of the provisions of Article 12º of this Agreement, they shall be deemed to
" afim entity, acting in the quality of public authority, or whose function is
recognized in an international treaty " , the following entities:
ENTITIES OF THE EUROPEAN UNION:
Belgium
-Vlaams Gewest (Flamenga Region)
-Région wallonne (Valan Region)
-Région bruxelloise / Brussels Gewest (Brussels Region)
-Communauté française (French Community)
-Vlaamse Gemeenschap (Flamenga Community)
-Deutschsprachige Gemeinschaft (German-speaking Community)
Spain
-Xunta de Galicia (Junta da Galicia)
-Junta de Andalucía (Junta of Andalusia)
-Extremadura Joint (Junta of the Extremadura)
-Junta of Castilla-La Mancha (Junta de Castela-Mancha)
-Junta of Castilla-León (Wedding of Castile-Lion)
-Gobierno Foral of Navarra (Regional Government of Navarra)
-Govern de les Illes Balears (Government of the Balearic Islands)
-Generalitat de Catalunya (Autonomy Government of Catalonia)
-Generalitat de Valencia (Autonomic Government of Valencia)
-Diputación General de Aragón (Regional Council of Aragon)
-Gobierno de las Islas Canarias (Government of the Canary Islands)
-Gobierno de Murcia (Government of Murcia)
-Gobierno de Madrid (Government of Madrid)
-Gobierno de la Comunidad Autónoma del País Vasco / Euzkadi (Government of the
Autonomous Community of the Basque Country)
-Diputación Foral de Guipúzcoa (Provincial Council of Guipuzcoa)
-Diputación Foral of Vizcaya / Bizkaia (Provincial Council of Biscay)
-Diputación Foral de Alava (Provincial Council of Alava)
-Ayuntamiento de Madrid (Municipality of Madrid)
-Ayuntamiento de Barcelona (Municipality of Barcelona)
-Gran Canaria Insular Cabildo (Insular Council of the Canary Gran)
-Cabildo Insular of Tenerife (Insular Council of Tenerife)
-Institute of Official Credit (Official Credit Institute)
-Catalán Institute of Finanzas (Catalan Institute of Finance)
-Valencian Institute of Finanzas (Valencian Institute of Finance)
Greece
-ργανισμός tions ηλεπικοινωνιών Ελλάδος (Organism of Telecommunications of the
Greece)
-γργανισμός Σιδηροδρόμων Ελλάδος (Organism of the Iron Paths of Greece)
-Δημόσια Επιχείρηση ΛεκτρισμούXX_ENCODE_CASE_CAPS_LOCK_Off (Public Electricity Company)
France
-La Caisse d' amortissement de la dette sociale (CADES) (Amortization Box of the
Social Debt)
-L' Agence française de développement (AFD) (French Agency for
Development)
-Réseau Ferré de France (RFF) (Network of the Iron Paths of France)
-Caisse Nationale des Autoroutes (CNA) (National Self-Road Box)
-Assistance publique Hôpitaux de Paris (APHP) (Public Assistance Hospitals of
Paris)
-Charbonnages de France (CDF) (Mines of Coal of France)
-Entreprise minière et chimique (EMC) (Mineira and Chemistry Company)
Italy
-Regions
-Provinces
-Municipalities
-Cassa Depositi e Prestiti (Box of Deposits and Loans)
Latvia
-Pašvaldības (Local Governments)
Poland
-gminy (commune)
-powiaty (precincts)
-województwa (provinces)
-związki gmin (associations of communes)
-powiatów (association of districts)
-województw (association of provinces)
-miasto stołeczne Warszawa (capital of Warsaw)
-Agencja Restrukturyzacji i Modernizacji Rolnictwa (Agency for Restructuring
and Modernization of Agriculture)
-Agencja Nieruchomości Rolnych (Agricultural Property Agency)
Portugal
-Autonomous Region of Madeira
-Autonomous Region of the Azores
-Municipalities
Slovakia
-mis the obce (municipalities)
-Železnice Slovenskej republiky (Company of the Iron Paths of Slovakia)
-Štátny fond cestného hospodárstva (State Fund of Management Viaria)
-Slovenské elektrárne (Electrical Companies of Slovakia)
-Vodohospodárska výstavba (Water Economy Building Company)
INTERNATIONAL ENTITIES:
-European Bank for Reconstruction and Development
-European Investment Bank
-Asian Development Bank
-African Development Bank
-World Bank / BIRD / IMF
-International Financial Society
-Inter-American Development Bank
-Social Development Fund of the Council of Europe
-EURATOM
-European Community
-The Andina de Fomento Corporation (CAF)
-Eurofima
-European Coal and Steel Community
-Nordic Investment Bank
-Caribbean Development Bank
The provisions of Article 12º shall be without prejudice to any obligations which the Contracting Parties
may have assumed in respect of the international entities referred to above.
ENTITIES IN THIRD COUNTRIES:
The entities that fulfil the following criteria.
1. The entity is clearly considered a public entity in accordance with the
national criteria.
2. A public entity of that kind to be a non-market producer that administers and
funds a group of activities, which essentially consist of providing goods
and non-market services intended for collectivity, and which are effectively
controlled by public administrations.
3. Such a public entity to issue debt securities on a regular basis and in large
quantity.
4. The State concerned shall be in a position to ensure that such a public entity does not
proceed to the early repayment in case there are clauses of
ressarcement ( gross-up ).