DOUBLE TAXATION RELIEF (TAXES ON INCOME) (THE REPUBLIC OF GHANA) ORDER (therepublicofghana)

REPUBLIC OF GHANA)

SUBSIDIARY LEGISLATION 123.195

DOUBLE TAXATION RELIEF (TAXES ON INCOME)

(THE REPUBLIC OF GHANA) ORDER

*

LEGAL NOTICE 23 of 2020.

The title of this order is the Double Taxation Relief

(Taxes on Income) (The Republic of Ghana) Order.

ARTICLE 2

AGREEMENT BETWEEN THE GOVERNMENT OF THE

REPUBLIC OF MALTA AND THE GOVERNMENT OF THE

REPUBLIC OF GHANA FOR THE AVOIDANCE OF DOUBLE

TAXATION AND THE PREVENTION OF FISCAL EVASION WITH

RESPECT TO TAXES ON INCOME

The Government of the Republic of Malta and the Government

of the Republic of Ghana, intending to eliminate double taxation with

respect to the taxes covered by this agreement without creating

opportunities for non-taxation or reduced taxation through tax evasion

or avoidance (including through treaty-shopping arrangements aimed at

obtaining reliefs provided in this agreement for the indirect benefit of

residents of third jurisdictions),

Desiring to further develop their economic relationship and to

enhance their co-operation in tax matters, have agreed as follows

ARTICLE 1

PERSONS COVERED

This Agreement shall apply to persons who are residents of one

or both of the Contracting States.

ARTICLE 2

TAXES COVERED

1. This Agreement 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, and taxes

on the total amounts of wages or salaries paid by enterprises.

It is hereby declared

(a)

that the arrangements specified in the Agreement

set out in the Schedule to this Order (hereinafter referred to as

"the Agreement") have been made with the Government of the

Republic of Ghana with a view to affording relief from double

taxation in relation to the following tax imposed by the laws of

the Republic of Ghana

the income tax

(b)

that it is expedient that those arrangements should

have effect following the entry into force of the Agreement and

in accordance with the relevant provisions of the Agreement;

(c)

that the Agreement shall enter into force on such

date as may be announced by notice in the Government

Gazette.

*Not yet in force.

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The existing taxes to which this Convention shall apply

are in particular

(a)

in Malta

the income tax;

(hereinafter referred to as "Malta tax");

(b)

in Ghana

the income tax;

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(hereinafter referred to as "Ghana tax").

The Agreement 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 taxation laws.

ARTICLE 3

GENERAL DEFINITIONS

1. For the purposes of this Agreement, unless the context

otherwise requires

(a)

the term "Malta" means the Republic of Malta

and, when used in a geographical sense, means the Island of

Malta, the Island of Gozo and the other islands of the Maltese

archipelago including the territorial waters thereof, as well as

any area of the sea-bed, its sub-soil and the superjacent water

column adjacent to the territorial waters, wherein Malta

exercises sovereign rights, jurisdiction, or control in accordance

with international law and its national law, including its

legislation relating to the exploration of the continental shelf

and exploitation of its natural resources;

(b)

the term "Ghana" means the Republic of Ghana

including its air space, the territorial sea and any area outside

the territorial sea within which, in accordance with international

law, the Republic of Ghana exercises jurisdiction and has

sovereign rights for the purpose of exploring and exploiting the

natural resources of the seabed and its subsoil and the

superjacent waters;

(c)

the terms "a Contracting State" and "the other

Contracting State" mean Malta or Ghana, as the context

requires;

(d)

the term "person" includes an individual, a

collective investment scheme, a company, a trust 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

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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 "competent authority" means

(i)

in Malta: the Minister responsible for

finance or his authorised representative;

(ii)

in Ghana, the Commissioner General of the

Ghana Revenue Authority or his authorised

representative;

(i)

the term "national", in relation to a Contracting

State, means

(i)

any individual possessing the nationality or

citizenship of that Contracting State;

(ii)

any legal person, partnership or association

deriving its status as such from the laws in force in that

Contracting State.

(j)

the term "recognized pension fund" of a State

means an entity or arrangement established in that State that is

treated as a separate person under the taxation laws of that State

and

(i)

that is established and operated exclusively

or almost exclusively to administer or provide retirement

benefits and ancillary or incidental benefits to individuals

and that is regulated as such by that State or one of its

political subdivisions or local authorities; or

(ii)

that is established and operated exclusively

or almost exclusively to invest funds for the benefit of

entities or arrangements referred to in subdivision (i).

2. As regards the application of the Agreement 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

Agreement 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.

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ARTICLE 4

RESIDENT

1. For the purposes of this Agreement, 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 as well as a recognized pension fund of that State. 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 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;

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(b)

a branch;

(c)

an office;

(d)

a factory;

(e)

a workshop;

(f)

a warehouse, in relation to a person providing

storage facilities for others;

(g)

a mine, an oil or gas well, a quarry or any other

place of extraction of natural resources; and

(h)

an installation or structure used for the exploration

of natural resources.

3. The

term

"permanent

establishment"

likewise

encompasses a building site or construction, installation or assembly

project, or supervisory activities in connection therewith only if the

site, project or activity lasts more than six months within any twelve

month period.

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 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.

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Notwithstanding the provisions of paragraphs 1 and 2,

where a person - other than an agent of an independent status to whom

paragraph 6 applies - is acting on behalf of an enterprise and has, and

habitually exercises, in a Contracting State an authority to conclude

contracts in the name of the enterprise, that enterprise shall be deemed

to have a permanent establishment in that State in respect of any

activities which that person undertakes for 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.

An enterprise shall not be deemed to have a permanent

establishment in a Contracting State merely because it carries on

business in that 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.

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.

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 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

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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. 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 State in

which the permanent establishment is situated or elsewhere which are

allowed under the provisions of the domestic law of the Contracting

State in which the permanent establishment is situated. 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

determining the profits of a permanent establishment, of 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. Insofar 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

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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 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

INTERNATIONAL SHIPPING AND AIR TRANSPORT

1. Profits of an enterprise of a Contracting State from the

operation of ships or aircraft in international traffic shall be taxable

only in that State.

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.

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.

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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 first-mentioned 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 Agreement 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 -

(a)

in the case of Ghana if the beneficial owner of the

dividends is a resident of Malta the tax so charged shall not

exceed six per cent of the gross amount of the dividends;

(b)

where the dividends are paid by a company which

is a resident of Malta to a resident of Ghana who is the

beneficial owner thereof, Malta tax on the gross amount of the

dividends shall not exceed that chargeable on the profits out of

which the dividends are paid.

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 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

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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 16, 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 or a

fixed base 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 seven per

cent of the gross amount of the interest. The competent authorities of

the Contracting States shall by mutual agreement settle the mode of

application of this limitation.

3. Notwithstanding the provisions of paragraph 2, interest

referred to in paragraph 1 shall be exempt from tax in the Contracting

State where the interest arises if the recipient of the interest is the

beneficial owner and if

(a)

the payer or the recipient of the interest is the

Government of the Contracting State itself, a public body, a

political subdivision or local authority thereof or the central

bank of a Contracting State; or

(b)

the interest is paid in connection with a loan

granted, approved, guaranteed or insured by the Government of

a Contracting State, the central bank of a Contracting State, or

any agency or instrumentality (including a financial institution)

owned or controlled by the Government of a Contracting State.

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

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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 debt-claim in respect of which the interest is

paid is effectively connected with such permanent establishment or

fixed base. In such case the provisions of Article 7 or Article 16, as the

case may be, shall apply.

6. Interest shall be deemed to arise in a Contracting State

when the payer is that State itself, a political subdivision, a local

authority or 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 debt-claim 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 last-

mentioned 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 Agreement.

ARTICLE 12

ROYALTIES

1. Royalties 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 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 is a resident of the

other Contracting State, the tax so charged shall not exceed eight

percent of the gross amount of the royalties. The competent authorities

of the Contracting States shall by mutual agreement settle the mode of

application of this paragraph.

3. The term "royalties" as used in this Article means

payments of any kind received as a consideration for the use of, or the

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right to use, any copyright of literary, artistic or scientific work

including cinematograph film 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

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 are paid is effectively connected with such permanent

establishment or fixed base. In such case the provisions of Article 7 or

Article 16, as the case may be, shall apply.

5. Royalties shall be deemed to arise in a Contracting State

when the payer is that State itself, a political subdivision, a local

authority or a resident of that State. Where, however, the person

paying the royalties, 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 was

incurred, and such royalties are borne by such permanent

establishment or fixed base, then such royalties 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, 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 last-mentioned 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 Agreement.

ARTICLE 13

SERVICES FEES

1. Services fees 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 services fees 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 services fees is a resident of the

other Contracting State the tax so charged shall not exceed twelve per

cent of the gross amount of the services fees. The competent

authorities of the Contracting State shall by mutual agreement settle

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the mode of application of this paragraph.

3. The term "services fees" as used in this article means

payment of any kind to any person, other than to an employee of the

person making the payment, in consideration for any services of a

managerial, technical or consultancy nature rendered in a contracting

state. However, the term services fees shall not include any payments in

consideration of supervisory activities in connection with a building

site or construction, assembly or installation project or for supervisory

activities in connection with installation incidental to the sale of

machinery or parts thereof.

4. The provisions of paragraphs 1 and 2 shall not apply if the

beneficial owner of the services fees, being a resident of a Contracting

State, carries on business in the other Contracting State in which the

services fees arise through a permanent establishment situated therein,

or performs in that other State independent personal services from a

fixed base situated therein, and the obligation in respect of which the

services fees are paid is effectively connected with such permanent

establishment or fixed base. In such case the provisions of Article 7 or

Article 16, as the case may be, shall apply.

5. Services fees shall be deemed to arise in a Contracting

State when the payer is that State itself, a political subdivision, a local

authority or another resident of that State. Where, however, the person

paying the services fees, 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 obligation to pay the services fees

was incurred, and where such services fees are borne by such

permanent establishment or fixed base, then such services fees shall be

deemed to arise in the Contracting 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 both of them and some other person,

the amount of the services fees 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 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 law of each Contracting State, due regard

being had to the other provisions of this Agreement.

ARTICLE 14

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.

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2. Gains 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.

3. Gains that an enterprise of a Contracting State that

operates ships or aircraft operated in international traffic derives from

the alienation of such ships or aircraft, or of movable property

pertaining to the operation of such ships or aircraft, shall be taxable

only in that State.

4. Gains derived by a resident of a Contracting State from

the alienation of shares or comparable interests, such as interests in a

partnership or trusts, may be taxed in the other Contracting State if, at

any time during the 365 days preceding the alienation, these shares or

comparable interests deriving more than 50 per cent of their value

directly or indirectly from immovable property (as defined in Article

6), situated in that other Contracting State.

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 State of which the alienator is a resident.

ARTICLE 15

DEPENDENT PERSONAL SERVICES

1. Subject to the provisions of Articles 17, 19, 20 and 22,

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 therefrom 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 first mentioned 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 12 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

REPUBLIC OF GHANA)

(c)

the remuneration is not borne by a permanent

establishment which the employer has in the other State.

3. Notwithstanding the preceding provisions of this Article,

remuneration derived by a resident of a Contracting State in respect of

an employment, as a member of the regular complement of a ship or

aircraft, that is exercised aboard a ship or aircraft operated solely

within the other Contracting State shall be taxable only in the first-

mentioned State.

ARTICLE 16

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, unless

(a)

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)

his stay in the other Contracting State is for a

period or periods amounting to or exceeding in the aggregate

183 days in any twelve month period commencing or ending in

the fiscal year concerned; in that case, only so much of the

income as is derived from his activities performed in that other

Contracting 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 17

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 18

ENTERTAINERS AND SPORTSPERSONS

1. Notwithstanding the provisions of Articles 7, 15 and 16

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 that resident’s personal activities as

REPUBLIC OF GHANA)

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 acting as such accrues not to the

entertainer or sportsperson but to another person, that income may,

notwithstanding the provisions of Articles 7, 15 and 16, be taxed in the

Contracting State in which the activities of the entertainer or

sportsperson are exercised.

3. Notwithstanding the provisions of paragraphs 1 and 2,

income derived from activities, referred to in paragraph 1, performed

under a cultural or sports agreement or arrangement between the

Contracting States shall be exempt from tax in the Contracting State in

which the activities are exercised if the visit to that State is wholly or

substantially supported by funds of either Contracting State, a local

authority or public institution thereof.

ARTICLE 19

PENSIONS

1. Subject to the provisions of paragraph 2 of Article 20,

pensions and other similar remuneration paid to a resident of a

Contracting State in consideration of past employment, shall be

taxable only in that State.

2. 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 20

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 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,

REPUBLIC OF GHANA)

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 shall be taxable only in that State.

(b)

However, such pensions and 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 15, 17, 18 and 19 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 21

STUDENTS

Payments which a student or business apprentice who is or was

immediately before visiting a Contracting State a resident of the other

Contracting State and who is present in the first-mentioned 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.

ARTICLE 22

MISCELLANEOUS RULES APPLICABLE TO

CERTAIN 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 sea bed and subsoil and their

natural resources situated in a Contracting State.

2. An enterprise 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 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 situated therein. For the purposes of this

paragraph

(a)

where an enterprise of a Contracting State carrying

on relevant activities in the other Contracting State is associated

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with another enterprise carrying on substantially similar

relevant activities there, the former enterprise shall be deemed

to be carrying on all such activities of the latter enterprise,

except to the extent that those activities are carried on at the

same time as its own activities;

(b)

an enterprise shall be regarded as associated with

another enterprise if one participates directly or indirectly in the

management, control or capital of the other or if the same

persons participate directly or indirectly in the management,

control or capital of both enterprises.

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.

5. Gains derived by a resident of a Contracting State from

the alienation of

(a)

exploration or exploitation rights; or

(b)

shares (or comparable instruments) deriving their

value or the greater part of their value directly or indirectly

from such rights, may be taxed in that other State.

In this paragraph "exploration or exploitation rights"

mean rights to assets to be produced by the exploration or exploitation

of the seabed or subsoil or their natural resources in the other

Contracting State, including rights to interests in the assets or to the

benefits of those assets.

ARTICLE 23

OTHER INCOME

1. Items of income of a resident of a Contracting State,

wherever arising, not dealt with in the foregoing Articles of this

Agreement 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 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 16, as the case

may be, shall apply.

REPUBLIC OF GHANA)

ARTICLE 24

ELIMINATION OF DOUBLE TAXATION

1. In the case of Malta, double taxation shall be eliminated

as follows

Subject to the provisions of the law of Malta regarding

the allowance of a credit against Malta tax in respect of foreign tax,

where, in accordance with the provisions of this Convention, there is

included in a Malta assessment income from sources within Ghana, the

Ghana tax on such income shall be allowed as a credit against the

relative Malta tax payable thereon.

2. In the case of Ghana, double taxation shall be eliminated

as follows

(a)

Malta tax payable under the laws of Malta and in

accordance with the provisions of the Agreement, whether

directly (by assessment) or by deduction (withholding), on

profits or income from sources within Malta (excluding, in the

case of dividends, tax payable in respect of the profits out of

which the dividends are paid) shall be allowed as a credit against

any Ghana tax computed by reference to the same profits or

income by reference to which Malta tax is computed;

(b)

In the case of dividends paid by a company which

is a resident of Malta to a company which is resident in Ghana

and which controls directly at least 10 per cent of the capital of

the company paying the dividends, the credit shall take into

account (in addition to any Malta tax for which credit may be

allowed under the provisions of sub-paragraph (a) the Malta tax

payable by the company in respect of the profits out of which

such dividends are paid.

Provided that any credit allowed under subparagraphs (a)

and (b) of this paragraph shall not exceed the proportion of the Ghana

tax which such profits or income bear to the entire profits or income

chargeable to Ghana tax.

ARTICLE 25

Non-discrimination

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.

REPUBLIC OF GHANA)

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, in particular with respect

to residence, 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, paragraph 6 of Article 12 or paragraph 6 of

Article 13 apply, interest, royalties, services fees 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 first-mentioned

State. Similarly, any debts of an enterprise of a Contracting State to a

resident of the other Contracting State shall, for the purpose of

determining the taxable capital of such enterprise, be deductible under

the same conditions as if they had been contracted to a resident of the

first-mentioned 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 first-mentioned 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 first-

mentioned State are or may be subjected.

6. The provisions of this Article shall, notwithstanding the

provisions of Article 2, apply to taxes of every kind and description.

ARTICLE 26

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 Agreement, he may, irrespective

of the remedies provided by the domestic law of those States, present

his case to the competent authority of either Contracting State. The

case must be presented within three years from the first notification of

REPUBLIC OF GHANA)

the action resulting in taxation not in accordance with the provisions of

the 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 State, with a view to the

avoidance of taxation which is not in accordance with the Agreement.

Any agreement reached shall be implemented notwithstanding any time

limits in the domestic law of the Contracting States.

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 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 States 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 27

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 Agreement or to the administration or

enforcement of the domestic laws concerning taxes of every kind and

description 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 Agreement. The exchange of

information is not restricted by Articles 1 and 2.

2. Any information received under paragraph 1 by 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. Notwithstanding

the foregoing, information received by a Contracting State may be used

for other purposes when such information may be used for such other

purposes under the laws of both States and the competent authority of

the supplying State authorises such use.

REPUBLIC OF GHANA)

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 28

MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS

Nothing in this Agreement 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.

ARTICLE 29

ENTITLEMENT TO BENEFITS

1. Notwithstanding the other provisions of this Agreement,

a benefit under this Agreement shall not be granted in respect of an

item of income if it is reasonable to conclude, having regard to all

relevant facts and circumstances, that obtaining that benefit was one of

the principal purposes of any arrangement or transaction that results

directly or indirectly in that benefit, unless it is established that

granting that benefit in these circumstances would be in accordance

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with the object and purpose of the relevant provisions of this

Agreement.

2. Where a benefit under this Agreement is denied to a

person under provisions of this Agreement that deny all or part of the

benefits that would otherwise be provided under the Agreement where

the principal purpose or one of the principal purposes of any

arrangement or transaction, or of any person concerned with an

arrangement or transaction, was to obtain those benefits, the competent

authority of the Contracting State that would otherwise have granted

this benefit shall nevertheless treat that person as being entitled to this

benefit, or to different benefits with respect to a specific item of income

if such competent authority, upon request from that person and after

consideration of the relevant facts and circumstances, determines that

such benefits would have been granted to that person in the absence of

the transaction or arrangement. The competent authority of the

Contracting State to which a request has been made under this

paragraph by a resident of the other Contracting State shall consult with

the competent authority of that other Contracting State before rejecting

the request.

ARTICLE 30

ENTRY INTO FORCE

1. The Contracting States shall notify each other, through

diplomatic channels, that the legal requirements for the entry into force

of this Agreement have been complied with.

2. This Agreement shall enter into force thirty days after the

date of the later of the notifications referred to in paragraph 1 and its

provisions shall have effect

(a)

in Malta

in respect of taxes on income derived during any calendar

year or accounting period, as the case may be, beginning on or

after the first day of January immediately following the date on

which the Agreement enters into force.

(b)

in Ghana

in respect of taxes on income for the year of assessment

beginning, on or after the first day of January in the calendar

year next following that in which the Agreement enters into

force.

ARTICLE 31

TERMINATION

This Agreement shall remain in force until terminated by a

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Contracting State. Either Contracting State may terminate the

Agreement, through diplomatic channels, by giving notice of

termination at least six months before the end of any calendar year

beginning after the expiration of a period of five years from the date of

its entry into force. In such event, the Agreement shall cease to have

effect

(a)

in Malta

in respect of taxes on income derived during any

calendar year or accounting period, as the case may be,

beginning on or after the first day of January immediately

following the date on which the notice is given.

(b)

in Ghana

in respect of in respect of taxes on income derived during

any calendar year beginning on or after the first day of January

immediately following the date on which the notice is given.

IN WITNESS WHEREO F the undersigned, being du ly

authorised thereto, have signed this Agreement.

DONE at Valletta this 26 day of March 2019 in the English

language.

On behalf of

On behalf of

THE GOVERNMENT OF THE

THE GOVERNMENT OF THE

REPUBLIC OF GHANA

REPUBLIC OF MALTA

Shirley Ayorkor Botchwey

Carmelo Abela

Minister for Foreign Affairs

Minister for Foreign Affairs and

Regional Integration

Trade Promotion