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UK/HONG KONG DOUBLE TAXATION AGREEMENT AND PROTOCOL SIGNED 21 JUNE 2010

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UK/HONG KONG DOUBLE TAXATION AGREEMENT AND PROTOCOL SIGNED 21 JUNE 2010
UK/HONG KONG DOUBLE TAXATION AGREEMENT
AND PROTOCOL
SIGNED 21 JUNE 2010
Entered into force 20 December 2010
Effective in the United Kingdom from 1 April 2011 for corporation tax
and from 6 April 2011 for income tax and capital gains tax
Effective in Hong Kong from 1 April 2011
HM Revenue & Customs
December 2010
CONTENTS
Article 1(Persons Covered).....................................................................4
Article 2 (Taxes Covered).......................................................................5
Article 3 (General Definitions) ...............................................................6
Article 4 (Resident).................................................................................8
Article 5 (Permanent Establishment)....................................................10
Article 6 (Income from Immovable Property)......................................12
Article 7 (Business Profits)...................................................................13
Article 8 (Shipping and Air Transport) ................................................14
Article 9 (Associated Enterprises) ........................................................15
Article 10 (Dividends) ..........................................................................16
Article 11 (Interest)...............................................................................18
Article 12 (Royalties)............................................................................20
Article 13 (Capital Gains).....................................................................22
Article 14 (Income from Employment) ................................................23
Article 15 (Directors’ Fees) ..................................................................24
Article 16 (Artistes and Sportsmen) .....................................................25
Article 17 (Pensions).............................................................................26
Article 18 (Government Service)..........................................................27
Article 19 (Students) .............................................................................28
Article 20 (Other Income).....................................................................29
Article 21 (Methods for Elimination of Double Taxation)...................31
Article 22 (Non-Discrimination) ..........................................................33
Article 23 (Mutual Agreement Procedure) ...........................................34
Article 24 (Exchange of Information) ..................................................35
Article 25 (Members of Government Missions)...................................37
Article 26 (Entry into Force) ................................................................38
Article 27 (Termination) .......................................................................39
PROTOCOL .........................................................................................41
AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE
GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE
REGION OF THE PEOPLE’S REPUBLIC OF CHINA FOR THE
AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF
FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON
CAPITAL GAINS
The Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of the Hong Kong Special Administrative Region of the People’s
Republic of China;
Desiring to conclude an Agreement for the avoidance of double taxation and the
prevention of fiscal evasion with respect to taxes on income and on capital gains;
Have agreed as follows:
ARTICLE 1
Persons Covered
This Agreement shall apply to persons who are residents of one or both of the
Contracting Parties.
ARTICLE 2
Taxes Covered
1.
This Agreement shall apply to taxes on income imposed on behalf of a
Contracting Party or of its political subdivisions or local authorities, irrespective of
the manner in which they are levied.
2.
There shall be regarded as taxes on income all taxes imposed on total income,
or on elements of income, including taxes on gains from the alienation of movable
or immovable property and taxes on capital appreciation.
3.
The existing taxes to which this Agreement shall apply are:
(a)
in the case of the Hong Kong Special Administrative Region:
(i)
profits tax;
(ii)
salaries tax; and
(iii) property tax;
whether or not charged under personal assessment;
(b)
in the case of the United Kingdom:
(i)
the income tax;
(ii)
the corporation tax; and
(iii) the capital gains tax.
4.
This Agreement shall apply also to any identical or substantially similar taxes
that are imposed after the date of signature of this Agreement in addition to, or in
place of, the existing taxes, as well as any other taxes falling within paragraphs 1
and 2 of this Article which a Contracting Party may impose in future. The
competent authorities of the Contracting Parties shall notify each other of any
significant changes that have been made in their taxation laws.
5.
The existing taxes, together with the taxes imposed after the signature of this
Agreement, are hereinafter referred to as “Hong Kong Special Administrative
Region tax” or “United Kingdom tax”, as the context requires.
ARTICLE 3
General Definitions
1.
For the purposes of this Agreement, unless the context otherwise requires:
(a)
(i)
the term “Hong Kong Special Administrative Region” means any
territory where the tax laws of the Hong Kong Special
Administrative Region apply;
(ii)
the term “United Kingdom” means Great Britain and Northern
Ireland, including any area outside the territorial sea of the United
Kingdom designated under its laws concerning the Continental
Shelf and in accordance with international law as an area within
which the rights of the United Kingdom with respect to the sea
bed and subsoil and their natural resources may be exercised;
(b)
the term “business” includes the performance of professional services
and of other activities of an independent character;
(c)
the term “company” means any body corporate or any entity that is
treated as a body corporate for tax purposes;
(d)
the term “competent authority” means:
(i)
in the case of the Hong Kong Special Administrative Region, the
Commissioner of Inland Revenue or his authorised
representative;
(ii)
in the case of the United Kingdom, the Commissioners for Her
Majesty’s Revenue and Customs or their authorised
representative;
(e)
the term “Contracting Party” or “Party” means the Hong Kong Special
Administrative Region or the United Kingdom, as the context requires;
(f)
the term “enterprise” applies to the carrying on of any business;
(g)
the terms “enterprise of a Contracting Party” and “enterprise of the
other Contracting Party” mean respectively an enterprise carried on by
a resident of a Contracting Party and an enterprise carried on by a
resident of the other Contracting Party;
(h)
the term “international traffic” means any transport by a ship or aircraft
operated by an enterprise of a Contracting Party except when the ship
or aircraft is operated solely between places in the other Contracting
Party;
(i)
the term “national” in relation to the United Kingdom means any
British citizen, or any British subject not possessing the citizenship of
any other Commonwealth country or territory, provided he has the right
of abode in the United Kingdom; and any legal person, partnership,
association or other entity deriving its status as such from the laws in
force in the United Kingdom;
(j)
the term “person” includes an individual, a partnership, a company and
any other body of persons;
(k)
the term “tax” means the Hong Kong Special Administrative Region
tax or United Kingdom tax, as the context requires.
2.
In this Agreement, the terms “Hong Kong Special Administrative Region
tax” and “United Kingdom tax” do not include any penalty or interest (including, in
the case of the Hong Kong Special Administrative Region, any sum added to the
Hong Kong Special Administrative Region tax by reason of default and recovered
therewith and “additional tax” under section 82A of the Inland Revenue Ordinance)
imposed under the laws of either Contracting Party relating to the taxes to which
this Agreement applies by virtue of Article 2.
3.
As regards the application of this Agreement at any time by a Contracting
Party, any term not defined therein shall, unless the context otherwise requires,
have the meaning that it has at that time under the law of that Party for the purposes
of the taxes to which this Agreement applies, any meaning under the applicable tax
laws of that Party prevailing over a meaning given to the term under other laws of
that Party.
ARTICLE 4
Resident
1.
For the purposes of this Agreement, the term “resident of a Contracting
Party” means:
(a)
in the case of the Hong Kong Special Administrative Region:
(i)
any individual who ordinarily resides in the Hong Kong Special
Administrative Region;
(ii)
any individual who stays in the Hong Kong Special
Administrative Region for more than 180 days during a year of
assessment or for more than 300 days in two consecutive years of
assessment one of which is the relevant year of assessment;
(iii) a company incorporated in the Hong Kong Special
Administrative Region or, if incorporated outside the Hong Kong
Special Administrative Region, being centrally managed and
controlled in the Hong Kong Special Administrative Region;
(iv) any other person constituted under the laws of the Hong Kong
Special Administrative Region or, if constituted outside the Hong
Kong Special Administrative Region, being centrally managed
and controlled in the Hong Kong Special Administrative Region;
(b)
in the case of the United Kingdom, any person who, under the laws of
the United Kingdom, is liable to tax therein by reason of his domicile,
residence, place of management, place of incorporation or any other
criterion of a similar nature. This term, however, does not include any
person who is liable to tax in the United Kingdom in respect only of
income from sources in the United Kingdom;
(c)
in the case of either Contracting Party, the Government of that Party
and any political subdivision or local authority thereof.
2.
Where by reason of the provisions of paragraph 1, an individual is a resident
of both Contracting Parties, then his status shall be determined as follows:
(a)
he shall be deemed to be a resident only of the Party in which he has a
permanent home available to him; if he has a permanent home available
to him in both Parties, he shall be deemed to be a resident only of the
Party with which his personal and economic relations are closer
(“centre of vital interests”);
(b)
if the Party in which he has his centre of vital interests cannot be
determined, or if he does not have a permanent home available to him
in either Party, he shall be deemed to be a resident only of the Party in
which he has an habitual abode;
(c)
if he has an habitual abode in both Parties or in neither of them, the
competent authorities of the Contracting Parties shall settle the question
by mutual agreement.
3.
Where by reason of the provisions of paragraph 1 a person other than an
individual is a resident of both Contracting Parties, then it shall be deemed to be a
resident of the Party in which its place of effective management is situated. In
cases of doubt, the competent authorities of the Contracting Parties shall endeavour
to determine by mutual agreement the Party in which that person’s place of
effective management is exercised, and in doing so, shall take into account all
relevant factors. In the absence of such agreement, that person shall not be entitled
to claim any benefits provided by this Agreement, except those provided by
Articles 21, 22 and 23.
ARTICLE 5
Permanent Establishment
1.
For the purposes of this Agreement, the term “permanent establishment”
means a fixed place of business through which the business of an enterprise is
wholly or partly carried on.
2.
The term “permanent establishment” includes especially:
(a)
a place of management;
(b)
a branch;
(c)
an office;
(d)
a factory;
(e)
a workshop; and
(f)
a mine, an oil or gas well, a quarry or any other place of extraction of
natural resources.
3.
A building site, a construction, assembly or installation project or supervisory
activities in connection therewith, constitute a permanent establishment only if
such site, project or activities last more than six months.
4.
The term “permanent establishment” also encompasses the furnishing of
services (including consultancy services) by an enterprise, directly or through
employees or other personnel engaged by the enterprise for such purpose, in
connection with a site, a project or supervisory activities referred to in paragraph 3,
if those services continue within a Contracting Party in connection with such site,
project or activities for a period or periods aggregating more than 183 days within
any twelve-month period.
5.
Notwithstanding the preceding provisions of this Article, the term
“permanent establishment” shall be deemed not to include:
(a)
the use of facilities solely for the purpose of storage, display or delivery
of goods or merchandise belonging to the enterprise;
(b)
the maintenance of a stock of goods or merchandise belonging to the
enterprise solely for the purpose of storage, display or delivery;
(c)
the maintenance of a stock of goods or merchandise belonging to the
enterprise solely for the purpose of processing by another enterprise;
(d)
the maintenance of a fixed place of business solely for the purpose of
purchasing goods or merchandise or of collecting information, for the
enterprise;
(e)
the maintenance of a fixed place of business solely for the purpose of
carrying on, for the enterprise, any other activity of a preparatory or
auxiliary character;
(f)
the maintenance of a fixed place of business solely for any combination
of activities mentioned in sub-paragraphs (a) to (e), provided that the
overall activity of the fixed place of business resulting from this
combination is of a preparatory or auxiliary character.
6.
Notwithstanding the provisions of paragraphs 1 and 2, where a person - other
than an agent of an independent status to whom paragraph 7 applies - is acting in a
Contracting Party on behalf of an enterprise of the other Contracting Party, that
enterprise shall be deemed to have a permanent establishment in the firstmentioned Contracting Party in respect of any activities which that person
undertakes for the enterprise, if such a person has, and habitually exercises, in the
first-mentioned Contracting Party an authority to conclude contracts on behalf of
the enterprise, unless the activities of such person are limited to those mentioned in
paragraph 5 which, if exercised through a fixed place of business, would not make
this fixed place of business a permanent establishment under the provisions of that
paragraph.
7.
An enterprise shall not be deemed to have a permanent establishment in a
Contracting Party merely because it carries on business in that Party through a
broker, general commission agent or any other agent of an independent status,
provided that such persons are acting in the ordinary course of their business.
8.
The fact that a company which is a resident of a Contracting Party controls or
is controlled by a company which is a resident of the other Contracting Party, or
which carries on business in that other Party (whether through a permanent
establishment or otherwise), shall not of itself constitute either company a
permanent establishment of the other.
ARTICLE 6
Income from Immovable Property
1.
Income derived by a resident of a Contracting Party from immovable
property (including income from agriculture or forestry) situated in the other
Contracting Party may be taxed in that other Party.
2.
The term “immovable property” shall have the meaning which it has under
the law of the Contracting Party in which the property in question is situated. The
term shall in any case include property accessory to immovable property, livestock
and equipment used in agriculture and forestry, rights to which the provisions of
general law respecting landed property apply, usufruct of immovable property and
rights to variable or fixed payments as consideration for the working of, or the right
to work, mineral deposits, quarries, sources and other natural resources; ships,
boats and aircraft shall not be regarded as immovable property.
3.
The provisions of paragraph 1 shall apply to income derived from the direct
use, letting, or use in any other form of immovable property.
4.
The provisions of paragraphs 1 and 3 shall also apply to the income from
immovable property of an enterprise.
ARTICLE 7
Business Profits
1.
The profits of an enterprise of a Contracting Party shall be taxable only in
that Party unless the enterprise carries on business in the other Contracting Party
through a permanent establishment situated therein. If the enterprise carries on
business as aforesaid, the profits of the enterprise may be taxed in the other Party,
but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a Contracting
Party carries on business in the other Contracting Party through a permanent
establishment situated therein, there shall in each Contracting Party be attributed to
that permanent establishment the profits which it might be expected to make if it
were a distinct and separate enterprise engaged in the same or similar activities
under the same or similar conditions and dealing wholly independently with the
enterprise of which it is a permanent establishment.
3.
In determining the profits of a permanent establishment, there shall be
allowed as deductions expenses which are incurred for the purposes of the
permanent establishment, including executive and general administrative expenses
so incurred, whether in the Party in which the permanent establishment is situated
or elsewhere.
4.
Insofar as it has been customary in a Contracting Party to determine the
profits to be attributed to a permanent establishment on the basis of an
apportionment of the total profits of the enterprise to its various parts, or on the
basis of such other method as may be prescribed by the laws of that Party, nothing
in paragraph 2 shall preclude that Contracting Party from determining the profits to
be taxed by such apportionment or other method; the method adopted shall,
however, be such that the result shall be in accordance with the principles
contained in this Article.
5.
No profits shall be attributed to a permanent establishment by reason of the
mere purchase by that permanent establishment of goods or merchandise for the
enterprise.
6.
For the purposes of the preceding paragraphs, the profits to be attributed to
the permanent establishment shall be determined by the same method year by year
unless there is good and sufficient reason to the contrary.
7.
Where profits include items of income which are dealt with separately in
other Articles of this Agreement, then the provisions of those Articles shall not be
affected by the provisions of this Article.
ARTICLE 8
Shipping and Air Transport
1.
Profits of an enterprise of a Contracting Party from the operation of ships or
aircraft in international traffic shall be taxable only in that Party.
2.
The provisions of paragraph 1 shall also apply to profits from the
participation in a pool, a joint business or an international operating agency.
3.
For the purposes of this Article, profits from the operation of ships or aircraft
in international traffic shall include:
(a)
profits from the operation of ships or aircraft for the transport of
persons, baggage, livestock, goods, mail or merchandise in
international traffic including:
(i)
income derived from rental operation on a full (time or voyage)
basis;
(ii)
income derived from the lease of ships or aircraft on a bareboat
basis where such lease is incidental to the operation of ships or
aircraft in international traffic; and
(iii) income derived from the sale of tickets or similar documentation
and the provision of services connected with such transport
whether for the enterprise itself or for any other enterprise,
provided that in the case of provision of services, such provision
is incidental to the operation of ships and aircraft in international
traffic;
(b)
interest on funds directly connected with the operation of ships or
aircraft in international traffic;
(c)
profits from the use, maintenance or rental of containers (including
trailers and related equipment for the transport of containers) by the
enterprise, where such use, maintenance or rental is incidental to the
operation of ships or aircraft in international traffic.
ARTICLE 9
Associated Enterprises
1.
Where
(a)
an enterprise of a Contracting Party participates directly or indirectly in
the management, control or capital of an enterprise of the other
Contracting Party, or
(b)
the same persons participate directly or indirectly in the management,
control or capital of an enterprise of a Contracting Party and an
enterprise of the other Contracting Party,
and in either case conditions are made or imposed between the two enterprises in
their commercial or financial relations which differ from those which would be
made between independent enterprises, then any profits which would, but for those
conditions, have accrued to one of the enterprises, but, by reason of those
conditions, have not so accrued, may be included in the profits of that enterprise
and taxed accordingly.
2.
Where a Contracting Party includes in the profits of an enterprise of that
Party - and taxes accordingly - profits on which an enterprise of the other
Contracting Party has been charged to tax in that other Party and the profits so
included are profits which would have accrued to the enterprise of the firstmentioned Party if the conditions made between the two enterprises had been those
which would have been made between independent enterprises, then that other
Party shall make an appropriate adjustment to the amount of the tax charged therein
on those profits. In determining such adjustment, due regard shall be had to the
other provisions of this Agreement and for this purpose the competent authorities
of the Contracting Parties shall if necessary consult each other.
ARTICLE 10
Dividends
1. Dividends paid by a company which is a resident of a Contracting Party to a
resident of the other Contracting Party may be taxed in that other Party.
2.
However, such dividends may also be taxed in the Contracting Party of
which the company paying the dividends is a resident and according to the laws of
that Party, but if the beneficial owner of the dividends is a resident of the other
Contracting Party:
(a)
except as provided in sub-paragraph (b), such dividends shall be
exempt from tax in the Contracting Party of which the company paying
the dividends is a resident;
(b)
other than where the beneficial owner of the dividends is a pension
scheme, where dividends are paid out of income (including gains)
derived directly or indirectly from immovable property within the
meaning of Article 6 by an investment vehicle which distributes most
of this income annually and whose income from such immovable
property is exempted from tax, the tax charged by the Contracting
Party of which the company paying the dividends is a resident shall not
exceed 15 per cent of the gross amount of the dividends.
This paragraph shall not affect the taxation of the company in respect of the profits
out of which the dividends are paid.
3.
The term “dividends” as used in this Article means income from shares, or
other rights, not being debt-claims, participating in profits, as well as any other
item which is subjected to the same taxation treatment as income from shares by
the laws of the Party of which the company making the distribution is a resident.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner
of the dividends, being a resident of a Contracting Party, carries on business in the
other Contracting Party of which the company paying the dividends is a resident
through a permanent establishment situated therein, and the holding in respect of
which the dividends are paid is effectively connected with such permanent
establishment. In such case the provisions of Article 7 shall apply.
5.
Where a company which is a resident of a Contracting Party derives profits
or income from the other Contracting Party, that other Party may not impose any
tax on the dividends paid by the company, except insofar as such dividends are
paid to a resident of that other Party or insofar as the holding in respect of which
the dividends are paid is effectively connected with a permanent establishment
situated in that other Party, nor subject the company’s undistributed profits to a tax
on undistributed profits, even if the dividends paid or the undistributed profits
consist wholly or partly of profits or income arising in that other Party.
6.
No relief shall be available under this Article if it was the main purpose or
one of the main purposes of any person concerned with the creation or assignment
of the shares or other rights in respect of which the dividend is paid to take
advantage of this Article by means of that creation or assignment.
ARTICLE 11
Interest
1.
Interest arising in a Contracting Party and paid to a resident of the other
Contracting Party may be taxed in that other Party.
2.
However, such interest may also be taxed in the Contracting Party in which it
arises and according to the laws of that Party, but if the beneficial owner of the
interest is a resident of the other Contracting Party and at least one of the
conditions mentioned in paragraph 3 of this Article is met, that interest shall be
taxable only in that other Party.
3.
The conditions referred to in paragraph 2 of this Article are that:
(a)
the interest is beneficially owned by:
(i)
that other Party itself, a political subdivision or local authority
thereof including, in the case of the Hong Kong Special
Administrative Region, the Hong Kong Monetary Authority;
(ii)
an individual;
(iii) a company whose principal class of shares is regularly traded on
a recognised stock exchange;
(iv) a pension scheme;
(v)
a financial institution which is unrelated to and dealing wholly
independently with the payer (the term “financial institution” here
means a bank or other enterprise substantially deriving its profits
by raising debt finance in the financial markets or by taking
deposits at interest and using those funds in carrying on a
business of providing finance); or
(vi) a company other than a company mentioned under subparagraphs (iii), (iv) or (v) provided that the competent authority
of the Contracting Party which has to grant the benefits
determines that the establishment, acquisition or maintenance of
the company does not have as its main purpose or one of its main
purposes to secure the benefits of this Article;
(b)
the interest is paid:
(i)
by a Contracting Party, a political subdivision or local authority
thereof including, in the case of the Hong Kong Special
Administrative Region, the Hong Kong Monetary Authority;
(ii)
by a bank in the ordinary course of its banking business; or
(iii) on a quoted Eurobond.
4.
The term “interest” as used in this Article means income from debt-claims of
every kind, whether or not secured by mortgage and whether or not carrying a right
to participate in the debtor’s profits, and in particular, income from government
securities and income from bonds or debentures, including premiums and prizes
attaching to such securities, bonds or debentures. The term shall not include
penalty charges for late payment nor any item treated as a dividend under the
provisions of paragraph 3 of Article 10.
5.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner
of the interest, being a resident of a Contracting Party, carries on business in the
other Contracting Party in which the interest arises through a permanent
establishment situated therein and the debt-claim in respect of which the interest is
paid is effectively connected with such permanent establishment. In such case the
provisions of Article 7 shall apply.
6.
Where, by reason of a special relationship between the payer and the
beneficial owner or between both of them and some other person, the amount of the
interest paid exceeds, for whatever reason, the amount which would have been
agreed upon by the payer and the beneficial owner in the absence of such
relationship, the provisions of this Article shall apply only to the last-mentioned
amount. In such case, the excess part of the payments shall remain taxable
according to the laws of each Contracting Party, due regard being had to the other
provisions of this Agreement.
7.
No relief shall be available under this Article if it was the main purpose or
one of the main purposes of any person concerned with the creation or assignment
of the debt-claim in respect of which the interest is paid to take advantage of this
Article by means of that creation or assignment.
ARTICLE 12
Royalties
1.
Royalties arising in a Contracting Party and paid to a resident of the other
Contracting Party may be taxed in that other Party.
2.
However, such royalties may also be taxed in the Contracting Party in which
they arise and according to the laws of that Party, but if the beneficial owner of the
royalties is a resident of the other Contracting Party, the tax so charged shall not
exceed 3 per cent of the gross amount of the royalties.
3.
The term “royalties” as used in this Article means payments of any kind
received as a consideration for the use of, or the right to use, any copyright of
literary, artistic or scientific work including cinematograph films, or films or tapes
used for radio or television broadcasting, any patent, trade mark, design or model,
plan, secret formula or process, or for information concerning industrial,
commercial or scientific experience.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner
of the royalties, being a resident of a Contracting Party, carries on business in the
other Contracting Party in which the royalties arise through a permanent
establishment situated therein and the right or property in respect of which the
royalties are paid is effectively connected with such permanent establishment. In
such case the provisions of Article 7 shall apply.
5.
Royalties shall be deemed to arise in a Contracting Party when the payer is a
resident of that Party. Where, however, the person paying the royalties, whether he
is a resident of a Contracting Party or not, has in a Contracting Party a permanent
establishment in connection with which the liability to pay the royalties was
incurred, and such royalties are borne by such permanent establishment, then such
royalties shall be deemed to arise in the Party in which the permanent
establishment is situated.
6.
Where, by reason of a special relationship between the payer and the
beneficial owner or between both of them and some other person, the amount of the
royalties exceeds, for whatever reason, the amount which would have been agreed
upon by the payer and the beneficial owner in the absence of such relationship, the
provisions of this Article shall apply only to the last-mentioned amount. In such
case, the excess part of the payments shall remain taxable according to the laws of
each Contracting Party, due regard being had to the other provisions of this
Agreement.
7.
No relief shall be available under this Article if it was the main purpose or
one of the main purposes of any person concerned with the creation or assignment
of the rights in respect of which the royalties are paid to take advantage of this
Article by means of that creation or assignment.
ARTICLE 13
Capital Gains
1.
Gains derived by a resident of a Contracting Party from the alienation of
immovable property referred to in Article 6 and situated in the other Contracting
Party may be taxed in that other Party.
2.
Gains from the alienation of movable property forming part of the business
property of a permanent establishment which an enterprise of a Contracting Party
has in the other Contracting Party, including such gains from the alienation of such
a permanent establishment (alone or with the whole enterprise), may be taxed in
that other Party.
3.
Gains derived by an enterprise of a Contracting Party from the alienation of
ships or aircraft operated in international traffic or movable property pertaining to
the operation of such ships or aircraft shall be taxable only in that Party.
4.
Gains derived by a resident of a Contracting Party from the alienation of
shares or comparable interests of a company deriving more than 50 per cent of its
asset value directly or indirectly from immovable property situated in the other
Contracting Party may be taxed in that other Party. However, this paragraph does
not apply to gains derived from the alienation of shares:
(a)
quoted on a recognised stock exchange; or
(b)
alienated or exchanged in the framework of a reorganisation of a
company, a merger, a division or a similar operation; or
(c)
in a company deriving more than 50 per cent of its asset value from
immovable property in which it carries on its business.
5.
Gains from the alienation of any property, other than that referred to in
paragraphs 1, 2, 3 and 4, shall be taxable only in the Contracting Party of which the
alienator is a resident.
ARTICLE 14
Income from Employment
1.
Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other
similar remuneration derived by a resident of a Contracting Party in respect of an
employment shall be taxable only in that Party unless the employment is exercised
in the other Contracting Party. If the employment is so exercised, such
remuneration as is derived therefrom may be taxed in that other Party.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by a
resident of a Contracting Party in respect of an employment exercised in the other
Contracting Party shall be taxable only in the first-mentioned Party if:
(a)
the recipient is present in the other Party for a period or periods not
exceeding in the aggregate 183 days in any twelve-month period
commencing or ending in the taxable period concerned, and
(b)
the remuneration is paid by, or on behalf of, an employer who is not a
resident of the other Party, and
(c)
the remuneration is not borne by a permanent establishment which the
employer has in the other Party, and
(d)
the remuneration is taxable in the first-mentioned Party according to
the laws in force in that Party.
3.
Notwithstanding the preceding provisions of this Article, remuneration
derived in respect of an employment exercised aboard a ship or aircraft operated in
international traffic by an enterprise of a Contracting Party may be taxed in that
Party.
ARTICLE 15
Directors’ Fees
Directors’ fees and other similar payments derived by a resident of a Contracting
Party in his capacity as a member of the board of directors of a company which is a
resident of the other Contracting Party may be taxed in that other Party.
ARTICLE 16
Artistes and Sportsmen
1.
Notwithstanding the provisions of Articles 7 and 14, income derived by a
resident of a Contracting Party as an entertainer, such as a theatre, motion picture,
radio or television artiste, or a musician, or as a sportsman, from his personal
activities as such exercised in the other Contracting Party, may be taxed in that
other Party.
2.
Where income in respect of personal activities exercised by an entertainer or
a sportsman in his capacity as such accrues not to the entertainer or sportsman
himself but to another person, that income may, notwithstanding the provisions of
Articles 7 and 14, be taxed in the Contracting Party in which the activities of the
entertainer or sportsman are exercised.
ARTICLE 17
Pensions
Pensions and other similar remuneration (including a lump sum payment) arising in
a Contracting Party and paid to a resident of the other Contracting Party in
consideration of past employment or self-employment and social security pensions
shall be taxable only in the first-mentioned Party.
ARTICLE 18
Government Service
1.
(a)
Salaries, wages and other similar remuneration paid by the Government
of a Contracting Party or a political subdivision or a local authority of a
Contracting Party to an individual in respect of services rendered to that
Party or subdivision or authority shall be taxable only in that Party.
(b)
However, such salaries, wages and other similar remuneration shall be
taxable only in the other Contracting Party if the services are rendered
in that Party and the individual is a resident of that Party who:
(i)
in the case of the Hong Kong Special Administrative Region, has
the right of abode therein and in the case of the United Kingdom,
is a national thereof; or
(ii)
did not become a resident of that Party solely for the purpose of
rendering the services.
2.
The provisions of Articles 14, 15 and 16 shall apply to salaries, wages and
other similar remuneration in respect of services rendered in connection with a
business carried on by the Government of a Contracting Party or a political
subdivision or a local authority of a Contracting Party.
ARTICLE 19
Students
Payments which a student who is or was immediately before visiting a Contracting
Party a resident of the other Contracting Party and who is present in the firstmentioned Party solely for the purpose of his education receives for the purpose of
his maintenance or education shall not be taxed in that Party, provided that such
payments arise from sources outside that Party.
ARTICLE 20
Other Income
1.
Items of income of a resident of a Contracting Party, wherever arising, not
dealt with in the foregoing Articles of this Agreement shall be taxable only in that
Party.
2.
Notwithstanding the provisions of paragraph 1, the following provisions shall
apply with respect to income paid out of trusts or the estates of deceased persons in
the course of administration:
Where such income is paid to a beneficiary who is a resident of the Hong Kong
Special Administrative Region by trustees or personal representatives who are
residents of the United Kingdom out of income received by those trustees or
personal representatives which would, if those trustees or personal representatives
had been residents of the Hong Kong Special Administrative Region, have fallen
within other Articles of this Agreement, the beneficiary shall be treated as having
received an amount of income received by the trustees or personal representatives
corresponding to the income received by him and any tax paid by the trustees or
personal representatives on that amount shall be treated as having been paid by the
beneficiary.
3.
The provisions of paragraph 1 shall not apply to income, other than income
from immovable property as defined in paragraph 2 of Article 6, if the recipient of
such income, being a resident of a Contracting Party, carries on business in the
other Contracting Party through a permanent establishment situated therein and the
right or property in respect of which the income is paid is effectively connected
with such permanent establishment. In such case the provisions of Article 7 shall
apply.
4.
Alimony or other maintenance payment paid by a resident of a Contracting
Party to a resident of the other Contracting Party shall, to the extent it is not
allowable as a deduction to the payer in the first-mentioned Party, be taxable only
in that Party.
5.
Where, by reason of a special relationship between the resident referred to in
paragraph 1 and some other person, or between both of them and some third
person, the amount of the income referred to in that paragraph exceeds the amount
(if any) which would have been agreed upon between them in the absence of such a
relationship, the provisions of this Article shall apply only to the last-mentioned
amount. In such a case, the excess part of the income shall remain taxable
according to the laws of each Contracting Party, due regard being had to the other
applicable provisions of this Agreement.
6.
No relief shall be available under this Article if it was the main purpose or
one of the main purposes of any person concerned with the creation or assignment
of the rights in respect of which the income is paid to take advantage of this Article
by means of that creation or assignment.
ARTICLE 21
Methods for Elimination of Double Taxation
1.
Subject to the provisions of the laws of the Hong Kong Special
Administrative Region relating to the allowance of a credit against Hong Kong
Special Administrative Region tax of tax paid in a jurisdiction outside the Hong
Kong Special Administrative Region (which shall not affect the general principle
of this Article), United Kingdom tax paid under the laws of the United Kingdom
and in accordance with this Agreement, whether directly or by deduction, in respect
of income derived by a person who is a resident of the Hong Kong Special
Administrative Region from sources in the United Kingdom, shall be allowed as a
credit against Hong Kong Special Administrative Region tax payable in respect of
that income, provided that the credit so allowed does not exceed the amount of
Hong Kong Special Administrative Region tax computed in respect of that income
in accordance with the tax laws of the Hong Kong Special Administrative Region.
2.
Subject to the provisions of the law of the United Kingdom regarding the
allowance as a credit against United Kingdom tax of tax payable in a territory
outside the United Kingdom or, as the case may be, regarding the exemption from
United Kingdom tax of a dividend arising in a territory outside the United
Kingdom (which shall not affect the general principle hereof):
(a)
Hong Kong Special Administrative Region tax payable under the laws
of the Hong Kong Special Administrative Region and in accordance
with this Agreement, whether directly or by deduction, on profits,
income or chargeable gains from sources within the Hong Kong
Special Administrative Region (excluding in the case of a dividend tax
payable in respect of the profits out of which the dividend is paid) shall
be allowed as a credit against any United Kingdom tax computed by
reference to the same profits, income or chargeable gains by reference
to which the Hong Kong Special Administrative Region’s tax is
computed;
(b)
a dividend which is paid by a company which is a resident of the Hong
Kong Special Administrative Region to a company which is a resident
of the United Kingdom shall be exempted from United Kingdom tax
when the conditions for exemption under the law of the United
Kingdom are met;
(c)
in the case of a dividend not exempted from tax under sub-paragraph
(b) above (because the conditions for exemption under the law of the
United Kingdom are not met) which is paid by a company which is a
resident of the Hong Kong Special Administrative Region to a
company which is a resident of the United Kingdom and which controls
directly or indirectly at least 10 per cent of the voting power in the
company paying the dividend, the credit mentioned in sub-paragraph
(a) above shall also take into account the Hong Kong Special
Administrative Region’s tax payable by the company in respect of its
profits out of which such dividend is paid.
3.
For the purposes of paragraphs 1 and 2, profits, income and gains owned by a
resident of a Contracting Party which may be taxed in the other Contracting Party
in accordance with this Agreement shall be deemed to arise from sources in that
other Party.
ARTICLE 22
Non-Discrimination
1.
Persons who, in the case of the Hong Kong Special Administrative Region,
have the right of abode or are incorporated or otherwise constituted therein, and, in
the case of the United Kingdom, are United Kingdom nationals, shall not be
subjected in the other Contracting Party to any taxation or any requirement
connected therewith, which is other or more burdensome than the taxation and
connected requirements to which persons who have the right of abode or are
incorporated or otherwise constituted in that other Party (where that other Party is
the Hong Kong Special Administrative Region) or nationals of that other Party
(where that other Party is the United Kingdom) in the same circumstances, in
particular with respect to residence, are or may be subjected.
2.
The taxation on a permanent establishment which an enterprise of a
Contracting Party has in the other Contracting Party shall not be less favourably
levied in that other Party than the taxation levied on enterprises of that other Party
carrying on the same activities.
3.
Except where the provisions of paragraph l of Article 9, paragraphs 6 and 7
of Article 11, paragraphs 6 and 7 of Article 12, or paragraphs 5 and 6 of Article 20
apply, interest, royalties and other disbursements paid by an enterprise of a
Contracting Party to a resident of the other Contracting Party shall, for the purpose
of determining the taxable profits of such enterprise, be deductible under the same
conditions as if they had been paid to a resident of the first-mentioned Party.
4.
Enterprises of a Contracting Party, the capital of which is wholly or partly
owned or controlled, directly or indirectly, by one or more residents of the other
Contracting Party, shall not be subjected in the first-mentioned Party to any
taxation or any requirement connected therewith which is other or more
burdensome than the taxation and connected requirements to which other similar
enterprises of the first-mentioned Party are or may be subjected.
5.
Nothing contained in this Article shall be construed as obliging either
Contracting Party to grant to individuals not resident in that Party any of the
personal allowances, reliefs and reductions for tax purposes which are granted to
individuals so resident or, in the case of the United Kingdom, to its nationals.
ARTICLE 23
Mutual Agreement Procedure
1.
Where a person considers that the actions of one or both of the Contracting
Parties result or will result for him in taxation not in accordance with the provisions
of this Agreement, he may, irrespective of the remedies provided by the domestic
laws of those Parties, present his case to the competent authority of the Contracting
Party of which he is a resident or, if his case comes under paragraph 1 of Article
22, to that of the Contracting Party in which he has the right of abode or is
incorporated or otherwise constituted (in the case of the Hong Kong Special
Administrative Region) or of which he is a national (in the case of the United
Kingdom). The case must be presented within three years from the first
notification of the action resulting in taxation not in accordance with the provisions
of this Agreement.
2.
The competent authority shall endeavour, if the objection appears to it to be
justified and if it is not itself able to arrive at a satisfactory solution, to resolve the
case by mutual agreement with the competent authority of the other Contracting
Party, with a view to the avoidance of taxation which is not in accordance with this
Agreement. Any agreement reached shall be implemented notwithstanding any
time limits in the domestic laws of the Contracting Parties.
3.
The competent authorities of the Contracting Parties shall endeavour to
resolve by mutual agreement any difficulties or doubts arising as to the
interpretation or application of this Agreement. They may also consult together for
the elimination of double taxation in cases not provided for in this Agreement.
4.
The competent authorities of the Contracting Parties may communicate with
each other directly for the purpose of reaching an agreement in the sense of the
preceding paragraphs.
ARTICLE 24
Exchange of Information
1.
The competent authorities of the Contracting Parties shall exchange such
information as is foreseeably relevant for carrying out the provisions of this
Agreement or to the administration or enforcement of the domestic laws of the
Contracting Parties concerning taxes covered by this Agreement, insofar as the
taxation thereunder is not contrary to this Agreement. The exchange of
information is not restricted by Article 1.
2.
Any information received under paragraph 1 by a Contracting Party shall be
treated as secret in the same manner as information obtained under the domestic
laws of that Party and shall be disclosed only to persons or authorities (including
courts and administrative bodies) concerned with the assessment or collection of,
the enforcement or prosecution in respect of, or the determination of appeals in
relation to the taxes referred to in paragraph 1. Such persons or authorities shall
use the information only for such purposes. They may disclose the information in
public court proceedings or in judicial decisions, including, in the case of the Hong
Kong Special Administrative Region, the decisions of the Board of Review.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to
impose on a Contracting Party the obligation:
(a)
to carry out administrative measures at variance with the laws and
administrative practice of that or of the other Contracting Party;
(b)
to supply information which is not obtainable under the laws or in the
normal course of the administration of that or of the other Contracting
Party;
(c)
to supply information which would disclose any trade, business,
industrial, commercial or professional secret or trade process, or
information the disclosure of which would be contrary to public policy.
4.
If information is requested by a Contracting Party in accordance with this
Article, the other Contracting Party shall use its information gathering measures to
obtain the requested information, even though that other Party may not need such
information for its own tax purposes. The obligation contained in the preceding
sentence is subject to the limitations of paragraph 3 but in no case shall such
limitations be construed to permit a Contracting Party to decline to supply
information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a
Contracting Party to decline to supply information solely because the information is
held by a bank, other financial institution, nominee or person acting in an agency or a
fiduciary capacity or because it relates to ownership interests in a person.
ARTICLE 25
Members of Government Missions
Nothing in this Agreement shall affect the fiscal privileges of members of
government missions, including consular posts, under the general rules of
international law or under the provisions of special agreements.
ARTICLE 26
Entry into Force
1.
Each of the Contracting Parties shall notify the other in writing of the
completion of the procedures required by its law for the bringing into force of this
Agreement. This Agreement shall enter into force on the date of the later of these
notifications.
2.
The provisions of this Agreement shall thereupon have effect:
(a)
in the Hong Kong Special Administrative Region:
in respect of Hong Kong Special Administrative Region tax, for any
year of assessment beginning on or after 1 April in the calendar year
next following that in which this Agreement enters into force;
(b)
in the United Kingdom:
(i)
in respect of income tax and capital gains tax, for any year of
assessment beginning on or after 6 April in the calendar year next
following that in which this Agreement enters into force;
(ii)
in respect of corporation tax, for any financial year beginning on
or after 1 April in the calendar year next following that in which
this Agreement enters into force.
3.
The Agreement between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Hong Kong Special
Administrative Region of the People’s Republic of China for the Avoidance of
Double Taxation on Revenues arising from the Business of Shipping Transport
signed in Hong Kong on the 25 October 2000 shall be terminated and cease to have
effect in respect of any tax with effect from the date upon which this Agreement
shall have effect in respect of that tax in accordance with the provisions of
paragraph 2.
ARTICLE 27
Termination
This Agreement shall remain in force until terminated by a Contracting Party.
Either Contracting Party may terminate this Agreement by giving the other
Contracting Party written notice of termination at least six months before the end of
any calendar year. In such event, this Agreement shall cease to have effect:
(a)
in the Hong Kong Special Administrative Region:
in respect of Hong Kong Special Administrative Region tax, for any
year of assessment beginning on or after 1 April in the calendar year
next following that in which the notice is given;
(b)
in the United Kingdom:
(i)
in respect of income tax and capital gains tax, for any year of
assessment beginning on or after 6 April in the calendar year next
following that in which the notice is given;
(ii)
in respect of corporation tax, for any financial year beginning on
or after 1 April in the calendar year next following that in which
the notice is given.
IN WITNESS WHEREOF, the undersigned, duly authorised thereto, have signed
this Agreement.
DONE in duplicate in London this 21st day of June 2010, in the English language.
For the Government of the
United Kingdom of Great Britain
and Northern Ireland
For the Government of the
Hong Kong Special
Administrative Region of the
People’s Republic of China
David Gauke MP
Prof. K C Chan
PROTOCOL
At the time of signing of the Agreement between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of the Hong
Kong Special Administrative Region of the People’s Republic of China for the
Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to
Taxes on Income and on Capital Gains, the two Governments have agreed on the
following provisions which shall form an integral part of the Agreement.
General
1.
For the purposes of applying this Agreement an item of income, profit or gain
derived through a person that is fiscally transparent under the laws of either
Contracting Party, shall be considered to be derived by a resident of a Contracting
Party to the extent that the item is treated for the purposes of the taxation law of
such Contracting Party as the income, profit or gain of that resident. It is
understood that this paragraph shall not affect the taxation by a Contracting Party
of its residents.
With reference to Article 11 (Interest) and Article 13 (Capital Gains)
2.
It is understood that the term “recognised stock exchange” means:
(a)
the Stock Exchange of Hong Kong Limited and any Hong Kong
Special Administrative Region stock exchange recognised under the
law of the Hong Kong Special Administrative Region;
(b)
the London Stock Exchange and any other United Kingdom investment
exchange recognised under United Kingdom law; or
(c)
any other stock exchange agreed upon by the competent authorities.
3.
It is understood that the term “pension scheme” means any plan, scheme,
fund, trust or other arrangement established in a Contracting Party which is:
(a)
generally exempt from income taxation in that Party; and
(b)
operated principally to administer or provide pension or retirement
benefits or to earn income for the benefit of one or more such
arrangements.
With reference to Article 24 (Exchange of Information)
4.
It is understood that:
(a)
the Article does not require the Contracting Parties to exchange
information on an automatic or a spontaneous basis;
(b)
information exchanged shall not be disclosed to any third jurisdiction;
and
(c)
the United Kingdom competent authority may disclose information to
the Information Commissioner, the Adjudicator and the Parliamentary
Ombudsman and their staff in the investigation of complaints against
the administrative actions of Her Majesty’s Revenue and Customs.
IN WITNESS WHEREOF, the undersigned, duly authorised thereto, have signed
this Protocol.
DONE in duplicate in London this 21st day of June 2010, in the English language.
For the Government of the
United Kingdom of Great Britain
and Northern Ireland
For the Government of the
Hong Kong Special
Administrative Region of the
People’s Republic of China
David Gauke MP
Prof. K C Chan
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