HK Cap. 112BP — Inland Revenue (Double Taxation Relief and Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains) (United Kingdom of Great Britain and Northern Ireland) Order

Inland Revenue (Double Taxation Relief and Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains) (United Kingdom of Great Britain and Northern Ireland) Order ( Cap. 112, section 49(1A) ) (Enacting provision omitted— E.R. 4 of 2020 ) [9 December 2010] (Format changes— E.R. 4 of 2020 ) 1. (Omitted as spent— E.R. 4 of 2020 ) 2. Declaration under section 49(1A) For the purposes of section 49(1A) of the Ordinance, it is declared— (a) that the arrangements specified in section 3(1) have been made with the Government of the United Kingdom of Great Britain and Northern Ireland with a view to affording relief from double taxation in relation to income tax and any tax of a similar character imposed by the laws of the United Kingdom; and (b) that it is expedient that those arrangements should have effect. 3. Arrangements specified (1) The arrangements specified for the purposes of section 2(a) are the arrangements in— (a) Articles 1 to 27 of the agreement titled “Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains” (which title is translated into Chinese as “《中華人民共和國香港特別行政區政府與大不列顛及北愛爾蘭聯合王國政府就收入及資本收益稅項避免雙重課稅和防止逃稅協定》” in this Order), done in duplicate at London on 21 June 2010 in the English language; and (b) Paragraphs 1 to 4 of the protocol to the agreement, done in duplicate at London on 21 June 2010 in the English language. (2) The English text of the Articles is reproduced in Part 1 of the Schedule ; a Chinese translation of the Articles is also set out in that Part. (3) The English text of the Paragraphs is reproduced in Part 2 of the Schedule ; a Chinese translation of the Paragraphs is also set out in that Part. Schedule [ s. 3 ] Part 1 Articles 1 to 27 of the Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains 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 first-mentioned 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 first-mentioned 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 sub-paragraphs (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 first-mentioned 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. (Chinese Translation) 第一條 所涵蓋的人 本協定適用於屬締約一方的居民或同時屬締約雙方的居民的人。 第二條 所涵蓋的稅項 1. 本協定適用於代締約方或其政治分部或地區主管當局課徵的收入稅項，不論該等稅項以何種方式徵收。 2. 對總收入或收入的組成部分課徵的所有稅項，包括對自轉讓動產或不動產所得的收益以及資本增值所課徵的稅項，須視為收入稅項。 3. 本協定適用於以下現有稅項： (a) 就香港特別行政區而言： (i) 利得稅； (ii) 薪俸稅；及 (iii) 物業稅； 不論是否按個人入息課稅徵收； (b) 就聯合王國而言： (i) 所得稅； (ii) 公司稅；及 (iii) 資產增值稅。 4. 本協定亦適用於在本協定的簽訂日期後，在現有稅項以外課徵或為取代現有稅項而課徵的任何與現有稅項相同或實質上類似的稅項，以及適用於締約方將來課徵而又屬本條第1及2款所指的任何其他稅項。締約雙方的主管當局須將其稅務法律的任何重大改變，通知對方的主管當局。 5. 現有稅項連同在本協定簽訂後課徵的稅項，以下稱為“香港特別行政區稅項”或“聯合王國稅項”，按文意所需而定。 第三條 一般定義 1. 就本協定而言，除文意另有所指外： (a) (i) “香港特別行政區”一詞指香港特別行政區的稅務法律所適用的任何地區； (ii) “聯合王國”一詞指大不列顛及北愛爾蘭，包括符合以下描述而位於聯合王國領海以外的地區：根據其關於大陸架的法律及按照國際法而獲指定為可在其內行使聯合王國在海床、下層土壤及其天然資源方面的權利的地區； (b) “業務”一詞包括進行專業服務及其他具獨立性質的活動； (c) “公司”一詞指任何法團或就稅收而言視作法團的任何實體； (d) “主管當局”一詞： (i) 就香港特別行政區而言，指稅務局局長或其獲授權代表； (ii) 就聯合王國而言，指稅務海關總署署長或其獲授權代表； (e) “締約方”或“一方”一詞指香港特別行政區或聯合王國，按文意所需而定； (f) “企業”一詞適用於任何業務的經營； (g) “締約方的企業”及“另一締約方的企業”兩詞分別指締約方的居民所經營的企業和另一締約方的居民所經營的企業； (h) “國際運輸”一詞指由締約方的企業營運的船舶或航空器進行的任何載運，但如該船舶或航空器只在另一締約方內的不同地點之間營運，則屬例外； (i) “國民”一詞，就聯合王國而言，指英國公民，沒有英聯邦任何其他國家或地區的公民身分但有聯合王國居留權的英籍人士，以及藉聯合王國現行的法律而取得法人、合夥、組織或其他實體地位的任何法人、合夥、組織或實體； (j) “人”一詞包括個人、合夥、公司及任何其他團體； (k) “稅項”一詞指香港特別行政區稅項或聯合王國稅項，按文意所需而定。 2. 在本協定中，“香港特別行政區稅項”及“聯合王國稅項”兩詞不包括根據任何締約方有關法律所徵收的任何罰款或利息；而就香港特別行政區而言，有關罰款或利息包括因拖欠香港特別行政區稅項而加收並連同欠款一併追討的款項及《稅務條例》 第82A條 所指的“補加稅”。有關法律，是指關乎本協定適用(屬憑藉第二條而適用)的稅項的法律。 3. 在締約方於任何時候施行本協定時，凡有任何詞語在本協定中並無界定，則除文意另有所指外，該詞語須具有它當其時根據該方就本協定適用的稅項而施行的法律所具有的涵義，而在根據該方適用的稅務法律給予該詞語的任何涵義與根據該方的其他法律給予該詞語的涵義兩者中，以前者為準。 第四條 居民 1. 就本協定而言，“締約方的居民”一詞︰ (a) 就香港特別行政區而言，指︰ (i) 通常居住於香港特別行政區的任何個人； (ii) 在某課稅年度內在香港特別行政區逗留超過180天或在連續兩個課稅年度(其中一個是有關的課稅年度)內在香港特別行政區逗留超過300天的任何個人； (iii) 在香港特別行政區成立為法團的公司，或在香港特別行政區以外成立為法團而在香港特別行政區內受中央管理及控制的公司； (iv) 根據香港特別行政區的法律組成的任何其他人，或在香港特別行政區以外組成而在香港特別行政區內受中央管理及控制的任何其他人； (b) 就聯合王國而言，指根據聯合王國的法律，因其居籍、居所、管理工作地點、成立為法團地點，或任何性質類似的其他準則而有在聯合王國繳稅的法律責任的人。然而，該詞並不包括僅就以聯合王國為來源的收入而有在聯合王國繳稅的法律責任的任何人； (c) 就任何締約方而言，指該方政府及其任何政治分部或地區主管當局。 2. 如任何個人因第1款的規定而同時屬締約雙方的居民，則該人的身分須按照以下規定斷定： (a) 如該人在其中一方有可供他使用的永久性住所，則該人須當作只是該方的居民；如該人在雙方均有可供他使用的永久性住所，則該人須當作只是與其個人及經濟關係較為密切的一方(“重要利益中心”)的居民； (b) 如無法斷定該人在哪一方有重要利益中心，或該人在任何一方均沒有可供他使用的永久性住所，則該人須當作只是他的慣常居所所在的一方的居民； (c) 如該人在雙方均有或均沒有慣常居所，則締約雙方的主管當局須共同協商解決該問題。 3. 如並非個人的人因第1款的規定而同時屬締約雙方的居民，則該人須當作是其實際管理工作地點所處的一方的居民。在有疑問的情況下，締約雙方的主管當局須致力透過共同協商，斷定該人進行實際管理工作的地點；並須在進行此事時，考慮所有有關因素。如未能達成協議，則該人無權申索任何本協定(第二十一、二十二及二十三條除外)訂明的利益。 第五條 常設機構 1. 就本協定而言，“常設機構”一詞在企業透過某固定營業場所進行全部或部分業務的情況下，指該固定營業場所。 2. “常設機構”一詞尤其包括： (a) 管理工作地點； (b) 分支機構； (c) 辦事處； (d) 工廠； (e) 作業場所；及 (f) 礦場、油井或氣井、石礦場或任何其他開採自然資源的場所。 3. 建築工地或建築、裝配或安裝工程，或與之有關連的監督管理活動構成常設機構的前提，是該工地、工程或活動持續六個月以上。 4. “常設機構”一詞亦包括企業在與第3款所提述的工地、工程或監督管理活動有關連的情況下提供服務(包括顧問服務)，該等服務可由該企業直接提供，亦可透過僱員或其他由該企業為提供該等服務而聘用的人員提供，但前提是該等服務須於任何十二個月的期間內，在與該工地、工程或活動有關連的情況下，在締約方持續一段超過183天的期間或累計超過183天的多段期間。 5. 儘管有本條上述的規定，“常設機構”一詞須當作不包括： (a) 純粹為了貯存、陳列或交付屬於有關企業的貨物或商品的目的而使用設施； (b) 純粹為了貯存、陳列或交付的目的而維持屬於有關企業的貨物或商品的存貨； (c) 純粹為了由另一企業作加工的目的而維持屬於有關企業的貨物或商品的存貨； (d) 純粹為了為有關企業採購貨物或商品或收集資訊的目的而維持固定營業場所； (e) 純粹為了為有關企業進行任何其他屬準備性質或輔助性質的活動而維持固定營業場所； (f) 純粹為了(a)至(e)段所述的活動的任何組合而維持固定營業場所，但該固定營業場所因該活動組合而產生的整體活動，須屬準備性質或輔助性質。 6. 儘管有第1及2款的規定，如某人(第7款適用的具獨立地位的代理人除外)在某締約方代表另一締約方的企業行事，並在首述的締約方擁有並慣常行使代表該企業訂立合約的權限，則就該人為該企業所進行的任何活動而言，該企業須當作在首述的締約方設有常設機構，但如該人的活動局限於第5款所述的活動(假若該等活動透過固定營業場所進行，則根據該款的規定，該固定營業場所不會成為常設機構)，則屬例外。 7. 凡某企業透過經紀、一般佣金代理人或任何其他具獨立地位的代理人在某締約方經營業務，則只要該等人士是在其業務的通常運作中行事的，該企業不得僅因它如此經營業務而被當作在該方設有常設機構。 8. 如屬某締約方的居民的某公司，控制屬另一締約方的居民的其他公司或在該另一締約方(不論是透過常設機構或以其他方式)經營業務的其他公司，或受該其他公司所控制，此項事實本身並不會令上述其中一間公司成為另一間公司的常設機構。 第六條 來自不動產的收入 1. 某締約方的居民自位於另一締約方的不動產取得的收入(包括自農業或林業取得的收入)，可在該另一方徵稅。 2. “不動產”一詞具有該詞根據有關財產所處的締約方的法律而具有的涵義。該詞在任何情況下須包括：附屬於不動產的財產、用於農業及林業的牲畜和設備、關於房地產的一般法律規定適用的權利、不動產的使用收益權，以及作為開採或有權開採礦藏、石礦、源頭及其他自然資源的代價而取得不固定或固定收入的權利；船舶、船艇及航空器不得視為不動產。 3. 第1款的規定適用於自直接使用、出租或以任何其他形式使用不動產而取得的收入。 4. 第1及3款的規定亦適用於來自企業的不動產的收入。 第七條 營業利潤 1. 某締約方的企業的利潤僅在該方徵稅，但如該企業透過位於另一締約方的常設機構在該另一方經營業務則除外。如該企業如前述般經營業務，其利潤可在該另一方徵稅，但以該等利潤中可歸因於該常設機構的利潤為限。 2. 在符合第3款的規定下，如某締約方的企業透過位於另一締約方的常設機構在該另一方經營業務，則須在每一締約方將該常設機構在某些情況下可預計獲得的利潤歸因於該機構，該等情況是指假設該常設機構是一間可區分且獨立的企業，在相同或類似的條件下從事相同或類似的活動，並在完全獨立的情況下，與首述企業進行交易。 3. 在斷定某常設機構的利潤時，為該常設機構的目的而招致的開支(包括如此招致的行政和一般管理開支)須容許扣除，不論該等開支是在該常設機構所處的一方或其他地方招致的。 4. 如某締約方習慣上是按照將某企業的總利潤分攤予其不同部分的基準、或按照該方的法律訂明的其他方法的基準，而斷定須歸因於有關常設機構的利潤，則第2款並不阻止該締約方按此分攤方法或其他方法斷定該等應課稅的利潤；但採用的方法，須令所得結果符合本條所載列的原則。 5. 不得僅因為某常設機構為有關企業採購貨物或商品，而將利潤歸因於該常設機構。 6. 就上述各款而言，除非有良好而充分的理由需要改變方法，否則每年須採用相同的方法斷定須歸因於有關常設機構的利潤。 7. 如利潤包括在本協定其他條文另有規定的收入項目，該等條文的規定不受本條的規定影響。 第八條 航運和空運 1. 某締約方的企業自營運船舶或航空器從事國際運輸所得的利潤，僅在該方徵稅。 2. 第1款的規定亦適用於來自參與聯營、聯合業務或國際營運機構的利潤。 3. 就本條而言，來自營運船舶或航空器從事國際運輸的利潤包括： (a) 營運船舶或航空器從事國際運輸以載運乘客、行李、禽畜、貨物、郵件或商品所得的利潤，包括： (i) 營運包船或包機(按時間或航程計費)所得的收入； (ii) 來自出租空船舶或空航空器所得的收入，但該等出租須屬附帶於營運船舶或航空器從事國際運輸的；及 (iii) 來自為有關企業本身或為任何其他企業出售與上述載運有關連的船票或機票或類似文件以及提供與上述載運有關連的服務的收入，但就提供服務而言，該等服務的提供須屬附帶於營運船舶及航空器從事國際運輸的； (b) 與營運船舶或航空器從事國際運輸有直接關連的資金所孳生的利息； (c) 來自有關企業使用、維修或出租貨櫃(包括用於載運貨櫃的拖架及相關設施)所得的利潤，前提是該等使用、維修或出租須屬附帶於營運船舶或航空器從事國際運輸的。 第九條 相聯企業 1. 凡 (a) 某締約方的企業直接或間接參與另一締約方的企業的管理、控制或資本，或 (b) 相同的人直接或間接參與某締約方的企業的和另一締約方的企業的管理、控制或資本， 而在上述任何一種情況下，該兩間企業之間在商業或財務關係上訂立或施加的條件，是有別於互相獨立的企業之間所訂立的條件的，則若非因該等條件便本應會產生而歸於其中一間企業、但因該等條件而未有產生而歸於該企業的利潤，可計算在該企業的利潤之內，並據此徵稅。 2. 凡某締約方將某些利潤計算在該方的某企業的利潤之內，並據此徵稅，而另一締約方的某企業已在該另一方就該等被計算在內的利潤課稅，如假設上述兩間企業之間訂立的條件正如互相獨立的企業之間所訂立的條件一樣，該等被計算在內的利潤是會產生而歸於首述一方的該企業的，則該另一方須就其對該等利潤徵收的稅額，作出適當的調整。在釐定上述調整時，須充分顧及本協定的其他規定，而為此目的，締約雙方的主管當局在有必要的情況下須共同磋商。 第十條 股息 1. 由屬某締約方的居民的公司支付予另一締約方的居民的股息，可在該另一方徵稅。 2. 然而，如支付股息的公司屬某締約方的居民，上述股息亦可在該締約方按照該方的法律徵稅，但如該等股息的實益擁有人是另一締約方的居民： (a) 除(b)段另有規定外，該等股息須在首述的締約方獲豁免徵稅； (b) (除在該股息的實益擁有人是一個退休金計劃的情況下)如該等股息是由一個投資載具，直接或間接自第六條所指的不動產取得的收入(包括收益)支付的，而該投資載具每年均派發大部分該項收入且其得自該不動產的收入是獲豁免徵稅的，則首述的締約方課徵的稅款，不得超過該等股息的總額的百分之十五。 如某公司從利潤中支付股息，本款並不影響就該等利潤對該公司徵稅。 3. “股息”一詞用於本條中時，指來自股份或其他分享利潤權利(但並非債權)的收入；如作出派發的公司屬某方的居民，而按該方的法律，有其他項目是須與來自股份的收入受到相同的稅務待遇，則“股息”亦包括該等項目。 4. 凡就某股份支付的股息的實益擁有人是某締約方的居民，支付該股息的公司則是另一締約方的居民，而該擁有人在該另一締約方內透過位於該另一方的常設機構經營業務，且持有該股份是與該常設機構有實際關連的，則第1及2款的規定並不適用。在此情況下，第七條的規定適用。 5. 如某公司是某締約方的居民，並自另一締約方取得利潤或收入，則該另一方不得對該公司就某股份支付的股息徵稅(但在有關股息是支付予該另一方的居民的範圍內，或在持有該股份是與位於該另一方的常設機構有實際關連的範圍內，則屬例外)，而即使支付的股息或未派發利潤的全部或部分，是在該另一方產生的利潤或收入，該另一方亦不得對該公司的未派發利潤徵收未派發利潤的稅項。 6. 如產生或轉讓孳生股息的股份或其他權利所關乎的任何人的主要目的或其中一個主要目的，是藉着產生或轉讓該股份或權利而自本條獲益，則不得根據本條獲得寬免。 第十一條 利息 1. 產生於某締約方而支付予另一締約方的居民的利息，可在該另一方徵稅。 2. 然而，在某締約方產生的上述利息，亦可在該締約方按照該方的法律徵稅，但如該等利息的實益擁有人是另一締約方的居民，而本條第3款所述的條件中最少一項獲得符合，則該等利息只可在該另一方徵稅。 3. 本條第2款所提述的條件如下： (a) 有關利息的實益擁有人屬： (i) 上述的另一方本身、其政治分部或地區主管當局；而就香港特別行政區而言，包括香港金融管理局； (ii) 一名個人； (iii) 一間公司，而其主要類別的股份是經常在認可證券交易所進行買賣； (iv) 一個退休金計劃； (v) 與支付人沒有關係且是完全獨立地與支付人進行交易的金融機構(在此，“金融機構”一詞指銀行或符合以下說明的其他企業︰其利潤主要來自在金融市場發債融資或接受有息存款，以及將該等資金用於營運提供融資業務)；或 (vi) 第(iii)、(iv)或(v)節所述的公司以外的公司，但前提是須批予有關利益的締約方的主管當局斷定，設立、取得或維持該公司的主要目的，不是確保取得本條的利益或沒有任何一個主要目的是確保取得本條的利益； (b) 有關利息： (i) 是由某締約方、其政治分部或地區主管當局支付的；而就香港特別行政區而言，包括由香港金融管理局支付的； (ii) 是由銀行在其銀行業務的通常運作中支付的；或 (iii) 是就上市國際債券支付的。 4. “利息”一詞用於本條中時，指來自任何類別的債權的收入，不論該債權是否以按揭作抵押，亦不論該債權是否附有分享債務人的利潤的權利，並尤其指來自政府證券和來自債券或債權證的收入，包括該等證券、債券或債權證所附帶的溢價及獎賞。該詞不包括逾期付款的罰款，亦不包括根據第十條第3款的規定視作股息的項目。 5. 凡就某項債權支付的利息的實益擁有人是某締約方的居民，並在該利息產生所在的另一締約方內，透過位於該另一締約方的常設機構經營業務，而該債權是與該常設機構有實際關連的，則第1及2款的規定並不適用。在此情況下，第七條的規定適用。 6. 凡因支付人與實益擁有人之間或他們兩人與某其他人之間的特殊關係，以致所支付的利息的款額，無論因何理由屬超出支付人與實益擁有人在沒有上述關係時會同意的款額，則本條的規定只適用於該會同意的款額。在此情況下，多付的部分仍須在充分顧及本協定的其他規定下，按照每一締約方的法律徵稅。 7. 如利息是就某項債權支付的，而產生或轉讓該債權所關乎的任何人的主要目的或其中一個主要目的，是藉着產生或轉讓該債權而自本條獲益，則不得根據本條獲得寬免。 第十二條 特許權使用費 1. 產生於某締約方而支付予另一締約方的居民的特許權使用費，可在該另一方徵稅。 2. 然而，在某締約方產生的上述特許權使用費亦可在該締約方按照該方的法律徵稅；但如該等特許權使用費的實益擁有人是另一締約方的居民，則如此徵收的稅款不得超過該等特許權使用費總額的百分之三。 3. “特許權使用費”一詞用於本條中時，指作為使用或有權使用文學作品、藝術作品或科學作品(包括電影影片或電台或電視廣播使用的膠片或磁帶)的任何版權、任何專利、商標、設計或模型、圖則、秘密程式或程序的代價，或作為取得關於工業、商業或科學經驗的資料的代價，因而收取的各種付款。 4. 凡就某權利或財產支付的特許權使用費的實益擁有人是某締約方的居民，並在該特許權使用費產生所在的另一締約方內，透過位於該另一方的常設機構經營業務，且該權利或財產是與該常設機構有實際關連的，則第1及2款的規定並不適用。在此情況下，第七條的規定適用。 5. 如支付特許權使用費的人是某締約方的居民，則該特許權使用費須當作是在該方產生。但如支付特許權使用費的人在某締約方設有常設機構(不論他是否某締約方的居民)，而支付該特許權使用費的法律責任，是在與該機構有關連的情況下招致的，且該特許權使用費是由該機構負擔的，則該特許權使用費須當作是在該機構所在的一方產生。 6. 凡因支付人與實益擁有人之間或他們兩人與某其他人之間的特殊關係，以致所支付的特許權使用費的款額，無論因何理由屬超出支付人與實益擁有人在沒有上述關係時會同意的款額，則本條的規定只適用於該會同意的款額。在此情況下，多付的部分仍須在充分顧及本協定的其他規定下，按照每一締約方的法律徵稅。 7. 如特許權使用費是就某權利支付的，而產生或轉讓該權利所關乎的任何人的主要目的或其中一個主要目的，是藉着產生或轉讓該權利而自本條獲益，則不得根據本條獲得寬免。 第十三條 資本收益 1. 某締約方的居民自轉讓位於另一締約方並屬第六條所提述的不動產所得的收益，