S.I. No. 436/2015 - Double Taxation Relief (Taxes on Income) (Pakistan) Order 2015.
Notice of the making of this Statutory Instrument was published in | ||
“Iris Oifigiúil” of 16th October, 2015. | ||
WHEREAS it is enacted by section 826(1) (as amended by section 157 of the Finance Act 2010 (No. 5 of 2010)) of the Taxes Consolidation Act 1997 (No. 39 of 1997) that where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to affording relief from double taxation in respect of income tax, corporation tax in respect of income and chargeable gains, capital gains tax or any taxes of a similar character imposed by the laws of the State or by the laws of that territory and, in the case of taxes of any kind or description imposed by the laws of the State or the laws of that territory, in relation to exchanging information for the purposes of the prevention and detection of tax evasion, granting relief from taxation under the laws of that territory to persons who are resident in the State for the purposes of tax or collecting and recovering tax (including interest, penalties and costs in connection with such tax) for the purpose of the prevention of tax evasion, and that it is expedient that those arrangements should have the force of law, and that the order so made is referred to in Part 1 of Schedule 24A of the Taxes Consolidation Act 1997 , then, subject to section 826 of that Act, the arrangements shall, notwithstanding any enactment, have the force of law as if such order were an Act of the Oireachtas on and from the date of the insertion of a reference to the order into Part 1 of Schedule 24A; | ||
AND WHEREAS it is further enacted by section 826 (6) of the Taxes Consolidation Act 1997 that where such an order is proposed to be made, a draft of the order shall be laid before Dáil Éireann and the order shall not be made until a resolution approving of the draft has been passed by Dáil Éireann; | ||
AND WHEREAS a draft of the following Order has been laid before Dáil Éireann and a resolution approving of the draft has been passed by Dáil Éireann; | ||
NOW, the Government, in exercise of the powers conferred on them by section 826(1) (as amended by section 157 of the Finance Act 2010 (No. 5 of 2010)) of the Taxes Consolidation Act 1997 , hereby order as follows: | ||
1. This Order may be cited as the Double Taxation Relief (Taxes on Income) (Pakistan) Order 2015. | ||
2. It is declared that— | ||
(a) the arrangements specified in the Convention, the text of which is set out in the Schedule, have been made with the Government of the Islamic Republic of Pakistan in relation to— | ||
(i) affording relief from double taxation and the prevention from fiscal evasion with respect to taxes on income, corporation tax in respect of income and chargeable gains, capital gains tax and any taxes of a similar character imposed by the laws of the State or by the laws of the Islamic Republic of Pakistan, and | ||
(ii) in the case of taxes of any kind or description imposed by the laws of the State or the laws of the Islamic Republic of Pakistan, exchanging information for the purposes of the prevention and detection of tax evasion and granting relief from taxation under the laws of the Islamic Republic of Pakistan to persons who are resident in the State for the purposes of tax, | ||
and | ||
(b) it is expedient that those arrangements should have the force of law. | ||
SCHEDULE | ||
CONVENTION BETWEEN THE GOVERNMENT OF | ||
IRELAND AND THE GOVERNMENT OF THE ISLAMIC REPUBLIC OF PAKISTAN FOR THE AVOIDANCE OF DOUBLE TAXATION | ||
AND THE PREVENTION OF FISCAL EVASION | ||
WITH RESPECT TO TAXES | ||
ON INCOME | ||
PREAMBLE | ||
The Government of Ireland and the Government of the Islamic Republic of Pakistan, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, and to promote and strengthen the economic relations between the two countries, have agreed as follows: | ||
CHAPTER I | ||
SCOPE OF THE CONVENTION | ||
Article 1 | ||
PERSONS COVERED | ||
This Convention shall apply to persons who are residents of one or both of the Contracting States. | ||
Article 2 | ||
TAXES COVERED | ||
1. This Convention shall apply to taxes on income imposed on behalf of a Contracting State 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. | ||
3. The existing taxes to which the Convention shall apply are in particular: | ||
(a) in the case of Ireland: | ||
(i) the income tax; | ||
(ii) the universal social charge; | ||
(iii) the corporation tax; and | ||
(iv) the capital gains tax; | ||
(hereinafterreferred to as “Irish tax”); | ||
(b) in the case of Pakistan, the income tax; | ||
(hereinafterreferred to as “Pakistan tax”). | ||
4. The Convention shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in their respective taxation laws. | ||
CHAPTER II | ||
DEFINITIONS | ||
Article 3 | ||
GENERAL DEFINITIONS | ||
1. For the purposes of this Convention, unless the context otherwise requires: | ||
(a) the term “Ireland” includes any area outside the territorial waters of Ireland which has been or may hereafter be designated, under the laws of Ireland concerning the Exclusive Economic Zone and the Continental Shelf, as an area within which Ireland may exercise such sovereign rights and jurisdiction as are in conformity with international law; | ||
(b) the term “Pakistan” when used in a geographical sense means Pakistan as defined in the constitution of the Islamic Republic of Pakistan and includes any area outside the territorial waters of Pakistan which under the laws of Pakistan and international law is an area within which Pakistan exercises sovereign rights and exclusive jurisdiction with respect to the natural resources of the seabed and subsoil and superjacent waters; | ||
(c) the term “Contracting State” and the “other Contracting State” mean Ireland or Pakistan as the context requires; | ||
(d) the term “person” includes an individual, a company and any other body of persons; | ||
(e) the term “company” means any body corporate or any entity that is treated as a body corporate for tax purposes; | ||
(f) the terms “enterprise of a Contracting State” and “enterprise of the other Contracting State” mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; | ||
(g) the term “international traffic” means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State; | ||
(h) the term “national”, in relation to a Contracting State, means: | ||
(i) any individual possessing the nationality or citizenship of that Contracting State; and | ||
(ii) any legal person, partnership or association deriving its status as such from the laws in force in that Contracting State; | ||
(i) the term “competent authority” means: | ||
(i) in the case of Ireland, the Revenue Commissioners or their authorised representative; | ||
(ii) in the case of Pakistan, the Federal Board of Revenue or its authorised representative. | ||
2. As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State. | ||
Article 4 | ||
RESIDENT | ||
1. For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State. | ||
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows: | ||
(a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests); | ||
(b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode; | ||
(c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national; | ||
(d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement. | ||
3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated. | ||
Article 5 | ||
PERMANENT ESTABLISHMENT | ||
1. For the purposes of this Convention, the term “permanent establishment” means a fixed place of business through which the business of an enterprise is wholly or partly carried on. | ||
2. The term “permanent establishment” includes especially: | ||
(a) a place of management; | ||
(b) a branch; | ||
(c) an office; | ||
(d) a factory; | ||
(e) a workshop; | ||
(f) a sales outlet; and | ||
(g) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources. | ||
3. The term “permanent establishment” also encompasses a building site, a construction, assembly or installation project or supervisory activities in connection therewith, but only if such site, project or activities last more than 6 months. | ||
4. 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 subparagraphs (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. | ||
5. 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 State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State in respect of any activities which that person undertakes for the enterprise, if such a person has and habitually exercises in that State an authority to conclude contracts in the name of the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph. | ||
6. Notwithstanding the preceding provisions of this Article, an insurance enterprise of a Contracting State shall, except in regard to re-insurance, be deemed to have a permanent establishment in the other Contacting State if it insures risks situated in the territory of that other State through a person other than an agent of an independent status to whom paragraph 7 applies. | ||
7. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, and conditions are made or imposed between that enterprise and the agent in their commercial and financial relations which differ from those which would have been made between independent enterprises, he will not be considered an agent of an independent status within the meaning of this paragraph. | ||
8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. | ||
CHAPTER III | ||
TAXATION OF INCOME | ||
Article 6 | ||
INCOME FROM IMMOVABLE PROPERTY | ||
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State. | ||
2. The term “immovable property” shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships, boats and aircraft shall not be regarded as immovable property. | ||
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 and to income from immovable property used for the performance of independent personal services. | ||
Article 7 | ||
BUSINESS PROFITS | ||
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. | ||
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. | ||
3. (a) In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment including only those executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere. | ||
(b) However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the head office of the enterprise or any of its other offices. | ||
4. In so far as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article. | ||
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 or gains which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. | ||
Article 8 | ||
SHIPPING AND AIR TRANSPORT | ||
1. Profits of an enterprise of a Contracting State from the operation or rental of ships or aircraft in international traffic shall be taxable only in that State. | ||
2. If the place of effective management of a shipping enterprise is aboard a ship, then it shall be deemed to be situated in the Contracting State in which the home harbour of the ship is situated, or, if there is no such home harbour, in the Contracting State of which the operator of the ship is a resident. | ||
3. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. | ||
Article 9 | ||
ASSOCIATED ENTERPRISES | ||
1. Where | ||
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or | ||
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, | ||
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions have not so accrued, may be included in the profits of that enterprise and taxed accordingly. | ||
2. Where a Contracting State includes in the profits of an enterprise of that State — and taxes accordingly — profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the firstmentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall, if necessary, consult each other. | ||
Article 10 | ||
DIVIDENDS | ||
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. | ||
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: | ||
(a)5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 25 per cent of the share capital of the company paying the dividends; | ||
(b)10 per cent of the gross amount of the dividends in all other cases. | ||
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, “jouissance” shares or “jouissance” rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the State 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 State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. | ||
5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other State, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. | ||
Article 11 | ||
INTEREST | ||
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. | ||
2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest. | ||
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the other Contracting State if such recipient is the beneficial owner of the interest and such interest is paid to: | ||
(a) in the case of Ireland— | ||
(i) the Central Bank of Ireland; | ||
(ii) the National Treasury Management Agency; | ||
(iii) the National Pension Reserve Fund; and | ||
(iv) a statutory body or any institution wholly owned by the Government of Ireland as may be agreed from time to time between the competent authorities of the Contracting States; and | ||
(b) in the case of Pakistan— | ||
(i) the State Bank of Pakistan; and | ||
(ii) a statutory body or any institution wholly owned by the Government of Pakistan as may be agreed from time to time between the competent authorities of the Contracting States. | ||
4. The term “interest”, as used in this Article, means income from debtclaims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor’s profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article. | ||
5. The provisions of paragraph 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debtclaim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such cases the provisions of Article 7 or Article 14, as the case may be, shall apply. | ||
6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. | ||
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debtclaim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. | ||
Article 12 | ||
ROYALTIES AND FEES FOR TECHNICAL SERVICES | ||
1. Royalties or fees for technical services arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. | ||
2. However, such royalties or fees for technical services may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties of fees for technical services is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties or fees for technical services. | ||
3. (a) 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. | ||
(b) The term “fees for technical services” means payment of any kind in consideration for the rendering of any managerial, technical or consultancy services including the provision of services by technical or other personnel but does not include payments for services mentioned in Articles 14 and 15 of this Convention. | ||
4. The provisions of paragraph 1 and 2 shall not apply if the beneficial owner of the royalties or fees for technical services, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties or fees for technical services are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. | ||
5. Royalties or fees for technical services shall be deemed to arise in a Contracting State where the payer is a resident of that State. Where, however, the person paying the royalties or fees for technical services, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties or fees for technical services was incurred, and such royalties or fees for technical services are borne by such permanent establishment or fixed base, then such royalties or fees for technical services shall be deemed to arise in the State in which the permanent establishment or fixed base 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 or fees for technical services, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. | ||
Article 13 | ||
CAPITAL GAINS | ||
1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State. | ||
2. Gains from the alienation of shares, other than shares quoted on a stock exchange, of the capital stock of a company, or of an interest in a partnership, trust or estate, the property of which consists directly or indirectly principally of immovable property situated in a Contracting State may be taxed in that State. In particular: | ||
(a) Nothing contained in this paragraph shall apply to a company, partnership, trust or estate, other than a company, partnership, trust or estate engaged in the business of management of immovable properties, the property of which consists directly or indirectly principally of immovable property used by such company, partnership, trust or estate in its business activities. | ||
(b) For the purposes of this paragraph, “principally” in relation to ownership of immovable property means the value of such immovable property exceeding fifty per cent of the aggregate value of all assets owned by the company, partnership, trust or estate. | ||
3. Gains, other than those dealt with in paragraph 2, from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State. | ||
4. Gains derived by an enterprise of a Contracting State 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 State. | ||
5. Gains from the alienation of any property, other than that referred to in paragraphs 1 to 4, shall be taxable only in the Contracting State of which the alienator is a resident. | ||
Article 14 | ||
INDEPENDENT PERSONAL SERVICES | ||
1. Income derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State except in the following circumstances, when such income may also be taxed in the other Contracting State: | ||
(a) If he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other Contracting State; or | ||
(b) If his stay in the other Contracting State is for a period or periods amounting to or exceeding in the aggregate 183 days in the fiscal year concerned; in that case, only so much of the income as is derived from his activities performed in that other State may be taxed in that other State. | ||
2. The term “professional services” includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. | ||
Article 15 | ||
DEPENDENT PERSONAL SERVICES | ||
1. Subject to the provisions of Articles 14, 16, 18 and 19,salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived there from may be taxed in that other State. | ||
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if: | ||
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned, and | ||
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and | ||
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State. | ||
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 State may be taxed in that Contracting State. | ||
Article 16 | ||
DIRECTORS’ FEES | ||
Directors’ fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. | ||
Article 17 | ||
ARTISTES AND SPORTSPERSONS | ||
1. Notwithstanding the provisions of Articles 7, 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State. | ||
2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in his capacity as such accrues not to the entertainer or sportsperson himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. | ||
Article 18 | ||
PENSIONS, ANNUITIES AND SOCIAL SECURITY PAYMENTS | ||
1. Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration paid to a resident of a Contracting State in consideration of past employment and any annuity paid to such a resident in consideration of past employment shall be taxable only in that State. | ||
2. The term “annuity” means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money’s worth. | ||
3. Notwithstanding the provisions of paragraph 1, pensions paid and other payments made under a public scheme which is part of the social security system of a Contracting State or a political subdivision or a local authority thereof shall be taxable only in that State. | ||
Article 19 | ||
GOVERNMENT SERVICE | ||
1. (a) Salaries, wages and other similar remuneration paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority in the discharge of functions of a governmental nature shall be taxable only in that State. | ||
(b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who: | ||
(i) is a national of that State; or | ||
(ii) did not become a resident of that State solely for the purpose of rendering the services. | ||
2. (a) Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority in the discharge of functions of a governmental nature shall be taxable only in that State. | ||
(b) However, such pensions and other similar remuneration shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State. | ||
3. The provisions of Articles 14, 15, 16, 17 and 18 shall apply to salaries, wages, pensions and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. | ||
Article 20 | ||
STUDENTS | ||
1. Payments which a student or business trainee or apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the firstmentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State. | ||
2. In respect of remuneration from employment, a student or business trainee or apprentice referred to in paragraph 1 shall, in addition, be entitled during such education or training to the same exemptions, credits, reliefs or reductions in respect of taxes as are available to residents of the Contracting State which he is visiting, providing that such employment is directly related to that education or training or is undertaken for the purposes of his maintenance during that education or training. | ||
Article 21 | ||
OTHER INCOME | ||
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State. | ||
2. The provisions of paragraph 1 shall not apply to income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. | ||
3. Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention and arising in the other Contracting State may also be taxed in that other State in accordance with domestic laws. | ||
Article 22 | ||
OFFSHORE ACTIVITIES | ||
1. The provisions of this Article shall apply notwithstanding any other provision of this Convention where activities (in this Article called “relevant activities”) are carried on offshore in connection with the exploration or exploitation of the seabed and subsoil and their natural resources situated in a Contracting State. | ||
2. A person who is a resident of a Contracting State which carries on relevant activities in the other Contracting State shall, subject to paragraph 3 of this Article, be deemed to be carrying on business in that other State through a permanent establishment or fixed base situated therein. | ||
3. Relevant activities which are carried on by an enterprise of a Contracting State in the other Contracting State for a period or periods not exceeding in the aggregate 30 days within any period of twelve months shall not constitute the carrying on of business through a permanent establishment or a fixed base situated therein. For the purposes of this paragraph: | ||
(a) where a resident of a Contracting State carrying on relevant activities in the other Contracting State is associated with another person carrying on substantially similar relevant activities there, the former person shall be deemed to be carrying on all such activities of the latter person, except to the extent that those activities are carried on at the same time as its own activities; | ||
(b) a person shall be deemed to be associated with another person if one is controlled directly or indirectly by the other, or both are controlled directly or indirectly by a third person or third persons. | ||
4. Salaries, wages and similar remuneration derived by a resident of a Contracting State in respect of an employment connected with relevant activities in the other Contracting State may, to the extent that the duties are performed offshore in that other State, be taxed in that other State. | ||
CHAPTER IV | ||
METHODS FOR THE ELIMINATION OF DOUBLE TAXATION | ||
Article 23 | ||
ELIMINATION OF DOUBLE TAXATION | ||
1. Subject to the provisions of the laws of Ireland regarding the allowance as a credit against Irish tax of tax payable in a territory outside Ireland (which shall not affect the general principle hereof): | ||
(a) Pakistan tax payable under the laws of Pakistan and in accordance with this Convention, whether directly or by deduction, on profits, income or gains from sources within Pakistan (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 Irish tax computed by reference to the same profits, income or gains by reference to which Pakistan tax is computed; | ||
(b) in the case of a dividend paid by a company which is a resident of Pakistan to a company which is a resident of Ireland and which controls directly or indirectly 5 per cent or more of the voting power in the company paying the dividend, the credit shall take into account (in addition to any Pakistan tax creditable under the provisions of subparagraph (a) of this paragraph) Pakistan tax payable by the company in respect of the profits out of which such dividend is paid. | ||
2. In Pakistan, double taxation shall be eliminated as follows: | ||
Subject to the provisions of the laws of Pakistan, regarding the allowance as a credit against Pakistan tax, the amount of Irish tax payable, under the laws of Ireland and in accordance with the provisions of this Agreement, whether directly or by deduction, by a resident of Pakistan, in respect of income from sources within Ireland which has been subject to a tax both in Pakistan and in Ireland shall be allowed as a credit against the Pakistan tax payable in respect of such income but in an amount not exceeding that proportion of Pakistan tax which such income bears to the entire income chargeable to Pakistan tax. | ||
3. For the purposes of paragraphs 1 and 2 profits, income and capital gains owned by a resident of a Contracting State which may be taxed in the other Contracting State in accordance with this Convention shall be deemed to be derived from sources in that other Contracting State. | ||
4. Where in accordance with any provision of the Convention income derived by a resident of a Contracting State is exempt from tax in that State, such State may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income. | ||
CHAPTER V | ||
SPECIAL PROVISIONS | ||
Article 24 | ||
NONDISCRIMINATION | ||
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States. | ||
2. Stateless persons who are residents of a Contracting State shall not be subjected in either Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of the State concerned in the same circumstances, are or may be subjected. | ||
3. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. | ||
4. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11, or paragraph 6 of Article 12 apply, interest, royalties, fees for technical services and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State 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 firstmentioned State. | ||
5. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the firstmentioned State 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 firstmentioned State are or may be subjected. | ||
Article 25 | ||
MUTUAL AGREEMENT PROCEDURE | ||
1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention. | ||
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 State, with a view to the avoidance of taxation which is not in accordance with the Convention. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting State. | ||
3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention. | ||
4. The competent authorities of the Contracting State may communicate with each other directly, including through a joint commission consisting of themselves or their representatives, for the purpose of reaching an agreement in the sense of the preceding paragraphs. | ||
Article 26 | ||
EXCHANGE OF INFORMATION | ||
1. The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes covered by this Convention imposed on behalf of the Contracting States, or of their political subdivisions or local authorities, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1. | ||
2. Any information received under paragraph 1by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1,or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. | ||
3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation: | ||
a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; | ||
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 State; | ||
c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public). | ||
4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State 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 State 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 State 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 27 | ||
MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS | ||
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. | ||
CHAPTER VI | ||
FINAL PROVISIONS | ||
Article 28 | ||
ENTRY INTO FORCE | ||
1. Each of the Contracting States shall notify to the other the completion of the procedure required by its law for the bringing into force of this Convention. | ||
2. This Convention shall enter into force on the date of receipt of the later of these notifications and shall thereupon have effect: | ||
(a) in the case of Ireland— | ||
(i) with regard to income tax, universal social charge and capital gains tax, for any year of assessment beginning on or after the first day of January in the calendar year next following the date in which this Convention enters into force; | ||
(ii) with regard to corporation tax, for any financial year beginning on or after the first day of January in the calendar year next following the date in which this Convention enters into force; | ||
(b) in the case of Pakistan— | ||
(i) with regard to taxes withheld at source, in respect of amounts paid or credited on or after the first day of July next following the date upon which the Convention enters into force; and | ||
(ii) with regard to other taxes, in respect of taxable years beginning on or after the first day of July next following the date upon which the Convention enters into force. | ||
3. The Convention between the Government of Ireland and the Government of the Islamic Republic of Pakistan for the Avoidance of Double Taxation with respect to Taxes on Income signed at Paris on 13 April 1973, (hereinafter referred to as “the 1973 Convention”), shall cease to have effect from the dates on which this Convention becomes effective in accordance with paragraph 2 of this Article. | ||
4. Notwithstanding paragraph 3, where any provision of the 1973 Convention would have afforded any greater relief from tax than is due under this Convention, any such provision as aforesaid shall continue to have effect for | ||
(a) a period of twelve months, and | ||
(b) subject to paragraph 5, in the case of paragraphs 1 and 2 of Article XV of the 1973 Convention, for a period of 5 years | ||
from the date on which the provisions of this Convention would otherwise have effect in accordance with the provisions of paragraph 2 of this Article. | ||
5. For the purposes of the application of subparagraph (b)(i) of paragraph 2 of Article XV of the 1973 Convention, the provisions of clauses (126D), (126E) and (133) of Part 1 of the Second Schedule to the Income Tax Ordinance 2001 shall apply in place of the provisions listed in that subparagraph. | ||
Article 29 | ||
TERMINATION | ||
1. This Convention shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Convention, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year starting five year after the year in which the Convention entered into force. | ||
In such event, the Convention shall cease to have effect: | ||
(a) in the case of Ireland— | ||
(i) with regard to income tax, universal social charge and capital gains tax, for any year of assessment beginning on or after the first day of January next following the date on which the period specified in the said notice of termination expires; | ||
(ii) with regard to corporation tax, for any financial year beginning on or after the first day of January next following the date on which the period specified in the said notice of termination expires; | ||
(b) in the case of Pakistan— | ||
(i) with regard to taxes withheld at source, for amounts taxable on or after the first day of January of the calendar year next following that in which the notice is given; and | ||
(ii) with regard to other taxes, for the tax year beginning on or after the first day of July of the calendar year next following that in which the notice is given. | ||
IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed this Convention. | ||
Done in duplicate at Dublin this 16th day of April 2015, in the English language. | ||
| ||
Protocol | ||
At the time of signing this Convention between the Government of Ireland | ||
and | ||
the Government of the Islamic Republic of Pakistan | ||
for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, the undersigned have agreed that the following provisions shall form an integral part of this Convention: | ||
1. With respect to Approved Retirement Funds in Ireland: | ||
It is understood that, taking account of tax-relief given for contributions or premiums paid in respect of retirement benefit schemes, retirement annuity contracts or other pension products, and the exemption from tax of income and gains accruing to a fund (referred to in this paragraph as a “pension fund”) created by such contributions or premiums, the distributions from an approved retirement fund in Ireland that was created by the transfer of accrued rights or assets from a pension fund shall only be taxable in Ireland, notwithstanding any provision of this Convention. | ||
2. With reference to Article 4: | ||
It is understood that a Common Contractual Fund (CCF) established in Ireland shall not be regarded as a resident of Ireland and shall be treated as fiscally transparent for the purposes of granting tax treaty benefits. | ||
3. With reference to Article 13, paragraph 5: | ||
Where | ||
(a) an individual domiciled in Ireland ceases to be a resident in Ireland, | ||
(b) disposes of property acquired prior to the first day of the calendar year in which he ceased to be resident in Ireland as mentioned in subparagraph (a) above, and | ||
(c) then becomes resident again in Ireland within 5 years of ceasing to be so resident, | ||
the provisions of paragraph 5 shall not affect the right of Ireland to tax the individual according to its law by reference to that disposal but the amount of the tax charged shall not exceed the amount of tax that would be charged on the amount of any gain arising on a deemed disposal by the individual of that property at market value on the day immediately before the first day of the calendar year in which he ceased to be resident in Ireland as mentioned in subparagraph (a) above. | ||
Provided that if, after the date of signature of this Convention, the laws of Pakistan are changed to include a capital gains tax then Pakistan may inform the Irish competent authority of this development and, if Pakistan so requests, Ireland shall immediately enter into negotiations reviewing the relevance, in the light of such development, of the provisions of the preceding paragraph with a view to amending or repealing those provisions where appropriate. | ||
Done in duplicate at Dublin this 16th day of April 2015 in the English language. | ||
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GIVEN under the Official Seal of the Government, | ||
13 October 2015. | ||
ENDA KENNY, | ||
Taoiseach. | ||
