DOUBLE TAXATION RELIEF ON TAXES ON INCOME WITH THE PORTUGUESE REPUBLIC ORDER

DOUBLE TAXATION RELIEF ON TAXES ON INCOME

WITH THE PORTUGUESE REPUBLIC

SUBSIDIARY LEGISLATION 123.63

DOUBLE TAXATION RELIEF ON TAXES ON

INCOME WITH THE PORTUGUESE REPUBLIC

ORDER

6th March, 2002

LEGAL NOTICE 105 of 2002, as amended by Legal Notice 250 of 2002.

The title of this Order is the Double Taxation Relief on

Taxes on Income with the Portuguese Republic Order.

CONVENTION BETWEEN MALTA

AND THE PORTUGUESE REPUBLIC

FOR THE AVOIDANCE OF DOUBLE TAXATION

AND THE PREVENTION OF FISCAL EVASION

WITH RESPECT TO TAXES ON INCOME

The Government of Malta and the Government of the Portuguese Republic,

desiring to conclude a Convention for the Avoidance of Double Taxation and the

Prevention of Fiscal Evasion with respect to Taxes on Income, have agreed as

follows

CHAPTER I

SCOPE OF THE CONVENTION

Article 1

PERSONAL SCOPE

This Convention shall apply to persons who are residents of one or both of

the Contracting States.

Article 2

TAXES COVERED

1. This Convention shall apply to taxes on income imposed on behalf of a

Contracting State or its political or administrative 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, taxes on the total amounts of wages or salaries paid

by enterprises as well as taxes on capital appreciation.

It is hereby declared -

(a) that the arrangements specified in the Convention set

out in the Schedule to this order have been made with

the Portuguese Republic with a view to affording relief

from double taxation in relation to the following taxes

imposed by the laws of the Portuguese Republic

(i)

the personal income tax (Imposto sobre o

Rendimento das Pessoas Singulares - IRS);

(ii) the corporate income tax (Imposto sobre o

Rendimento das Pessoas Colectivas - IRC); and

(iii) the local surtax on corporate income tax

(Derrama);

(b)

that it is expedient that those arrangements should

have effect;

(c) that the Convention has entered into force on the 5th

April, 2002.

The existing taxes to which the Convention shall apply are in particular

(a) in the case of Portugal

(i)

the personal income tax (Imposto sobre o Rendimento das Pessoas

Singulares - IRS);

(ii) the corporate income tax (Imposto sobre o Rendimento das

Pessoas Colectivas - IRC); and

(iii) the local surtax on corporate income tax (Derrama);

(hereinafter referred to as "Portuguese tax");

(b) in the case of Malta

the income tax;

(hereinafter referred to as "Malta tax").

The Convention shall apply also to any identical or substantially similar

taxes which 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 substantial changes which have been made in their

respective taxation laws.

CHAPTER II

DEFINITIONS

Article 3

GENERAL DEFINITIONS

1. For the purposes of this Convention, unless the context otherwise requires

(a) the term "Portugal" means the territory of the Portuguese Republic

situated in the European Continent, the archipelagos of Azores and

Madeira, the respective territorial sea and any other zone in which, in

accordance with the laws of Portugal and international law, the

Portuguese Republic has its jurisdiction or sovreign rights with respect

to the exploration and exploitation of the natural resources of the sea

bed and subsoil, and of the superjacent waters;

(b) 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, and any area outside the territorial waters of Malta

which has been or may hereafter be designated, in accordance with

international law and under the law of Malta concerning the continental

shelf, as an area within which the rights of Malta with respect to the

seabed and subsoil and their natural resources may be exercised;

(c) the terms "a Contracting State" and "the other Contracting State" mean

Portugal or Malta, as the context requires;

(d) the term "person" includes an individual, a company and any other body

of persons;

(e) the term "company" means any body corporate, or any entity which is

treated as a body corporate for tax purposes;

(f)

the terms "enterprise of a Contracting State" and "enterprise of the other

Contracting State" mean respectively an enterprise carried on by a

resident of a Contracting State and an enterprise carried on by a resident

of the other Contracting State;

(g) the term "international traffic" means any transport by a ship or aircraft

operated by an enterprise of a Contracting State, except when the ship

or aircraft is operated solely between places in the other Contracting

State;

(h) the term "competent authority" means

(i)

in Portugal: the Minister of Finance, the Director General of

Taxation (Director-General dos Impostos) or their authorised

representative;

(ii) in Malta: the Minister responsible for finance or his authorised

representative;

(i)

the term "national" means

(i)

any individual possessing the nationality of a Contracting State;

(ii)

any legal person, partnership or association deriving its status as

such from the laws in force in a Contracting State.

2. As regards the application of the Convention by a Contracting State, any

term not defined therein shall, unless the context otherwise requires, have the

meaning which it has at that time under the laws of that State for the purposes of the

taxes to which the Convention applies, any meaning under the applicable tax laws of

that State prevailing over a meaning given to the term under other laws of that State.

Article 4

RESIDENT

1. For the purposes of this Convention, the term "resident of a Contracting

State" means any person who, under the laws of that State, is liable to tax therein by

reason of his domicile, residence, place of management or any other criterion of a

similar nature and also includes that State and any political or administrative

subdivision or local authority thereof. This term, however, does not include any

person who is liable to tax in that State in respect only of income from sources in

that State.

2. Where by reason of the provisions of paragraph 1 an individual is a resident

of both Contracting States, then his status shall be determined as follows

(a) he shall be deemed to be a resident only of the State in which he has a

permanent home available to him; if he has a permanent home available

to him in both States, he shall be deemed to be a resident only of the

State with which his personal and economic relations are closer (centre

of vital interests);

(b) if the State in which he has his centre of vital interests cannot be

determined, or if he has not a permanent home available to him in either

State, he shall be deemed to be a resident only of the State in which he

has an habitual abode;

(c) if he has an habitual abode in both States or in neither of them, he shall

be deemed to be a resident only of the State of which he is a national;

(d) if he is a national of both States or of neither of them, the competent

authorities of the Contracting States shall settle the question by mutual

agreement.

3. Where by reason of the provisions of paragraph 1 a person other than an

individual is a resident of both Contracting States, then it shall be deemed to be a

resident only of the State in which its place of effective management is situated.

Article 5

PERMANENT ESTABLISHMENT

1. For the purposes of this Convention, the term "permanent establishment"

means a fixed place of business through which the business of an enterprise is

wholly or partly carried on.

2. The term "permanent establishment" includes especially

(a) a place of management;

(b) a branch;

(c) an office;

(d) a factory;

(e) a workshop;

(f)

a mine, an oil or gas well, a quarry or any other place of extraction of

natural resources including an offshore drilling site.

3. The term "permanent establishment" likewise encompasses

(a) a building site, a construction, assembly or installation project or

supervisory activities in connection therewith, but only where such site,

project or activities continue for a period of more than nine months;

(b) the furnishing of services, including consultancy services, by an

enterprise through employees or other personnel engaged by the

enterprise for such purpose, but only where activities of that nature

continue (for the same or a connected project) within a Contracting

State for a period or periods aggregating more than nine 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.

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 of a Contracting State shall not be deemed to have a

permanent establishment in the other Contracting State merely because it carries on

business in that other State through a broker, general commission agent or any other

agent of an independent status, provided that such persons are acting in the ordinary

course of their business.

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 Contacting State, or

which carries on business in that other State (whether through a permanent

establishment or otherwise), shall not of itself constitute either company a

permanent establishment of the other.

CHAPTER III

TAXATION OF INCOME

Article 6

INCOME FROM IMMOVABLE PROPERTY

1. Income derived by a resident of a Contracting State from immovable

property (including income from agriculture or forestry) situated in the other

Contracting State may be taxed in that other State.

2. The term "immovable property" shall have the meaning which it has under

the law of the Contracting State in which the property in question is situated. The

term shall in any case include property accessory to immovable property, livestock

and equipment used in agriculture and forestry, rights to which the provisions of

general law respecting landed property apply, usufruct of immovable property and

rights to variable or fixed payments as consideration for the working of, or the right

to work, or to explore for, mineral deposits, sources and other natural resources;

ships, boats and aircraft shall not be regarded as immovable property.

3. The provisions of paragraph 1 shall apply to income derived from the direct

use, letting, or use in any other form of immovable property.

4. The provisions of paragraphs 1 and 3 shall also apply to the income from

immovable property of an enterprise and to income from immovable property used

for the performance of independent personal services.

5. The foregoing provisions shall also apply to income from movable property,

or income derived from services connected with the use or the right to use the

immovable property, which, under the taxation law of the Contracting State in which

the property is situated, is assimilated to income from immovable property.

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

Contracting 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 or with other associated

enterprises with which it deals.

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.

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 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 Convention, then the provisions of those Articles shall not be

affected by the provisions of this Article.

Article 8

SHIPPING AND AIR TRANSPORT

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

participation in a pool, a joint business or an international operating agency.

3. Whenever companies from different countries have agreed to carry on an air

transportation business together in the form of a consortium or a similar form of

association, the provisions of paragraph 1 shall apply to such part of the profits of

the consortium or association as corresponds to the participation held in that

consortium or association by a company that is a resident of a Contracting State.

Article 9

ASSOCIATED ENTERPRISES

1. Where

(a) an enterprise of a Contracting State participates directly or indirectly in

the management, control or capital of an enterprise of the other

Contracting State, or

(b) the same persons participate directly or indirectly in the management,

control or capital of an enterprise of a Contracting State and an

enterprise of the other Contracting State,

and in either case conditions are made or imposed between the two enterprises in

their commercial or financial relations which differ from those which would be made

between independent enterprises, then any profits which would, but for those

conditions, have accrued to one of the enterprises, but, by reason of those conditions,

have not so accrued, may be included in the profits of that enterprise and taxed

accordingly.

2. Where a Contracting State includes in the profits of an enterprise of that

State - and taxes accordingly - profits on which an enterprise of the other

Contracting State has been charged to tax in that other State and the profits so

included are profits which would have accrued to the enterprise of the 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 Convention and the competent authorities of the Contracting

States shall if necessary consult each other.

Article 10

DIVIDENDS

1. Dividends paid by a company which is a resident of a Contracting State to a

resident of the other Contracting State may be taxed in that other State.

2. However, such dividends may also be taxed in the Contracting State of

which the company paying the dividends is a resident and according to the laws of

that State, but

(a) where the dividends are paid by a company which is a resident of

Portugal to a resident of Malta who is the beneficial owner thereof, the

Portuguese tax so charged shall not exceed

(i)

15 per cent of the gross amount of the dividends; or

(ii)

10 per cent of the gross amount of the dividends if the beneficial

owner is a company that, for an uninterrupted period of two years

prior to the payment of the dividend, owns directly at least 25 per

cent of the capital stock (capital social) of the company paying

the dividends;

(b) where the dividends are paid by a company which is a resident of Malta

to a resident of Portugal 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.

The competent authorities of the Contracting States shall by mutual

agreement settle the mode of application of these limitations.

This paragraph shall not affect the taxation of the company in respect of the

profits out of which the dividends are paid.

3. The term "dividends" as used in this Article means income from shares,

"jouissance" shares or "jouissance" rights, mining shares, founders’ shares or other

rights, not being debt-claims, participating in profits, as well as income which is

subjected to the same taxation treatment as income from shares by the laws of the

State of which the company making the distribution is a resident.

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

of the dividends, being a resident of a Contracting State, carries on business in the

other Contracting State of which the company paying the dividends is a resident,

through a permanent establishment situated therein, or performs in that other State

independent personal services from a fixed base situated therein, and the holding in

respect of which the dividends are paid is effectively connected with such permanent

establishment or fixed base. In such case the provisions of Article 7 or Article 14, as

the case may be, shall apply.

5. Where a company which is a resident of a Contracting State derives profits

or income from the other Contracting State, that other State may not impose any tax

on the dividends paid by the company, except insofar as such dividends are paid to a

resident of that other State or insofar as the holding in respect of which the dividends

are paid is effectively connected with a permanent establishment 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 10 percent 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 arising in a

Contracting State shall be exempt from tax in that State if it is derived by the other

Contracting State or an administrative sub-division or a local authority thereof or an

entity wholly owned and controlled by that State or an administrative sub-division or

local authority.

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. Penalty charges for late payment

shall not be regarded as interest for the purpose of this Article.

5. The provisions of paragraphs 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 14, as the case may be,

shall apply.

6. Interest shall be deemed to arise in a Contracting State when the payer is a

resident of that State. Where, however, the person paying the interest, whether he is

a resident of a Contracting State or not, has in a Contracting State a permanent

establishment or a fixed base in connection with which the indebtedness on which

the interest is paid was incurred, and such interest is borne by such permanent

establishment or fixed base, then such interest shall be deemed to arise in the State in

which the permanent establishment or fixed base is situated.

7. Where, by reason of a special relationship between the payer and the

beneficial owner or between both of them and some other person, the amount of the

interest, having regard to the 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 Convention.

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 10 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 limitation.

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, any patent, trade

mark, design or model, plan, secret formula or process, or for the use of, or the right

to use, industrial, commercial or scientific equipment, 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 14, as

the case may be, shall apply.

5. Royalties shall be deemed to arise in a Contracting State when the payer is a

resident of that Contracting 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 law of each Contracting State, due

regard being had to the other provisions of this Convention.

Article 13

CAPITAL GAINS

1. Gains derived by a resident of a Contracting State from the alienation of

immovable property referred to in Article 6 and situated in the other Contracting

State may be taxed in that other State.

2. Gains from the alienation of shares or comparable interests in a company,

the assets of which consist wholly or principally of immovable property, may be

taxed in the Contracting State in which the assets or the principal assets of the

company are situated.

3. 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.

4. Gains from the alienation of ships or aircraft operated in international traffic

by an enterprise of a Contracting State, or movable property pertaining to the

operation of such ships or aircraft, shall be taxable only in that State.

5. Gains from the alienation of any property, other than that referred to in

paragraphs 1, 2, 3 and 4, shall be taxable only in the Contracting State of which the

alienator is a resident.

6. With respect to gains derived by an air transport consortium or a similar

form of association formed by companies from different countries, the provisions of

paragraph 4 shall apply only to such part of the gains as corresponds to the

participation held in that consortium or association by a company that is a resident of

a Contracting State.

Article 14

INDEPENDENT PERSONAL SERVICES

1. Income derived by a resident of a Contracting State in respect of

professional services or other activities of an independent character shall be taxable

only in that State. However, such income may be taxed in the other Contracting

State in the following circumstances

(a) if he has a fixed base regularly available to him in the other Contracting

State for the purpose of performing his activities; in that case, only so

much of the income as is attributable to that fixed base may be taxed in

that other Contracting State; or

(b) if his stay in the other Contracting State is for a period or periods

amounting to or exceeding in the aggregate 183 days in 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 the activity

exercised in the 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 15

DEPENDENT PERSONAL SERVICES

1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other

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

employment shall be taxable only in that State unless the employment is exercised in

the other Contracting State. If the employment is so exercised, such remuneration as

is derived 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 twelve-month period

commencing or ending in the fiscal year concerned;

(b) the remuneration is paid by, or on behalf of, an employer who is not a

resident of the other State; and

(c) the remuneration is not borne by a permanent establishment or a fixed

base which the employer has in the other State.

3. Notwithstanding the preceding provisions of this Article, remuneration

derived in respect of an employment exercised aboard a ship or aircraft operated in

international traffic by an enterprise of a Contracting State may be taxed in that

State.

4. Where a resident of a Contracting State derives remuneration in respect of

an employment exercised aboard an aircraft operated in international traffic by an air

transport consortium or a similar form of association formed by companies from

different countries including a company that is a resident of that State, such

remuneration shall be taxable only in that State.

Article 16

DIRECTORS’ FEES

Directors’ fees and other similar payments derived by a resident of a

Contracting State in his capacity as a member of the board of directors of a company

which is a resident of the other Contracting State may be taxed in that other State.

Article 17

ENTERTAINERS AND SPORTSPERSONS

1. Notwithstanding the provisions of Articles 7, 14 and 15, income derived by

a resident of a Contracting State as an entertainer, such as a theatre, motion picture,

radio or television artiste, or a musician, or as a sportsperson, from his personal

activities as such exercised in the other Contracting State, may be taxed in that other

State.

2. Where income in respect of personal activities exercised by an entertainer or

a sportsperson in his capacity as such accrues not to the entertainer or sportsperson

himself but to another person, that income may, notwithstanding the provisions of

Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the

entertainer or sportsperson are exercised.

Article 18

PENSIONS AND SOCIAL SECURITY PAYMENTS

1. Subject to the provisions of paragraph 2 of Article 19, pensions and other

similar remuneration paid to a resident of a Contracting State in consideration of

past employment shall be taxable only in that State.

2. Notwithstanding the provisions of paragraph 1, pensions and other payments

under the social security legislation of a Contracting State may be taxable only in

that State.

Article 19

GOVERNMENT SERVICE

1. (a) Salaries, wages and other similar remuneration, other than a pension,

paid by a Contracting State or a political or administrative sub-division

or a local authority thereof in respect of services rendered to that State

or subdivisdion 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) Any pension paid by, or out of funds created by, a Contracting State or a

political or administrative subdivision or 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 pension 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, 16 and 18 shall apply to salaries, wages and

other similar remuneration, and to pensions, in respect of services rendered in

connection with a business carried on by a Contracting State or a political or

administrative subdivision or a local authority thereof.

Article 20

STUDENTS AND BUSINESS APPRENTICES

A student or business apprentice who is present in a Contracting State solely

for the purpose of his education or training and who is, or immediately before being

so present was, a resident of the other Contracting State, shall be exempt from tax in

the first-mentioned State on payments received from outside that first-mentioned

State for the purposes of his maintenance, education or training.

Article 21

OTHER INCOME

1. Items of income of a resident of a Contracting State, wherever arising, not

dealt with in the foregoing Articles of this Convention shall be taxable only in that

State.

2. The provisions of paragraph 1 shall not apply to income, other than income

from immovable property as defined in paragraph 2 of Article 6, if the recipient of

such income, being a resident of a Contracting State, carries on business in the other

Contracting State through a permanent establishment situated therein, or performs in

that other State independent personal services from a fixed base situated therein and

the right or property in respect of which the income is paid is effectively connected

with such permanent establishment or fixed base. In such case the provisions of

Article 7 or Article 14, as the case may be, shall apply.

CHAPTER IV

ELIMINATION OF DOUBLE TAXATION

Article 22

ELIMINATION OF DOUBLE TAXATION

1. In the case of Portugal double taxation shall be eliminated as follows

(a) where a resident of Portugal derives income which, in accordance with

the provisions of this Convention, may be taxed in Malta, the

Portuguese Republic shall allow as a deduction from the tax on the

income of that resident an amount equal to the income tax paid in Malta.

Such deduction shall not, however, exceed that part of the income tax as

computed before the deduction is given, which is attributable to the

income which may be taxed in Malta; and

(b) where in accordance with any provision of the Convention income

derived by a resident of Portugal is exempt from tax in this State,

Portugal may nevertheless, in calculating the amount of tax on the

remaining income of such resident, take into account the exempted

income.

2. 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 Portugal the Portuguese tax on such income shall be allowed as a

credit against the relative Malta tax payable thereon.

3. For the purpose of allowance as a credit the tax payable in Portugal or

Malta, as the context requires, shall be deemed to include the tax which is otherwise

payable in a Contracting State but has been reduced or waived temporarily by that

State under its legal provisions for tax incentives relating to economic development.

The provisions of this paragraph shall apply for the first seven years during

which this Convention is applicable. This period may be extended by mutual

agreement between the competent authorities.

The competent authorities shall also consult each other with a view to

identifying the tax incentives applicable in both Contracting States which may

qualify for the purpose of this paragraph.

4. Where the Convention provides that income arising in a Contracting State

shall be relieved from tax in that State, either in full or in part, and, under the law in

force in the other Contracting State, such income is subject to tax by reference to the

amount thereof which is remitted to or received in that other State and not by

reference to the full amount thereof, then the relief to be allowed in the first-

mentioned State shall apply only to such portion of the income as is remitted to or

received in the other State.

CHAPTER V

SPECIAL PROVISIONS

Article 23

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.

2. The taxation of 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.

3. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of

Article 11, or paragraph 6 of Article 12 apply, interest, royalties 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.

4. 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.

5. The provisions of this Article shall apply to taxes of every kind and

description which are the subject of this Convention.

Article 24

MUTUAL AGREEMENT PROCEDURE

1. Where a person considers that the actions of one or both of the Contracting

States result or will result for him in taxation not in accordance with the provisions

of this Convention, he may, irrespective of the remedies provided by the domestic

law of those States, present his case to the competent authority of the Contracting

State of which he is a resident or, if his case comes under paragraph 1 of Article 23,

to that of the Contracting State of which he is a national. The case must be presented

within three years from the first notification of the action resulting in taxation not in

accordance with the provisions of the Convention.

2. The competent authority shall endeavour, if the objection appears to it to be

justified and if it is not itself able to arrive at a satisfactory solution, to resolve the

case by mutual agreement with the competent authority of the other Contracting

State, with a view to the avoidance of taxation which is not in accordance with the

Convention. Any agreement reached shall be implemented notwithstanding any time

limits in the domestic law of the Contracting 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 Convention. They may also consult together for

the elimination of double taxation in cases not provided for in the Convention.

4. The competent authorities of the Contracting 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 25

EXCHANGE OF INFORMATION

1. The competent authorities of the Contracting States shall exchange such

information as is necessary for carrying out the provisions of this Convention or of

the domestic laws of the Contracting States concerning taxes covered by the

Convention insofar as the taxation thereunder is not contrary to the Convention. The

exchange of information is not restricted by Article 1. Any information received 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, or the

determination of appeals in relation to, the taxes covered by the Convention. 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.

2. In no case shall the provisions of paragraph 1 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;

DOUBLE TAXATION RELIEF ON TAXES ON INCOME

WITH THE PORTUGUESE REPUBLIC

(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).

Article 26

MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS

Nothing in this Convention shall affect the fiscal privileges of members of

diplomatic missions or consular posts under the general rules of international law or

under the provisions of special agreements.

Article 27

LIMITATION OF RELIEF

The provisions of this Convention shall not apply to persons entitled to any

special tax benefit under

(a) a law of either one of the Contracting States which has been identified

in an Exchange of Notes between the Contracting States; or

(b) any substantially similar law subsequently enacted.

CHAPTER VI

FINAL PROVISIONS

Article 28

ENTRY INTO FORCE

1. The Contracting States shall notify each other that the constitutional

requirements for the entry into force of this Convention have been complied with.

2. This Convention 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 Portugal

(i)

in respect of taxes withheld at source, the fact giving rise to them

appearing on or after the first day of January of the year next

following the year in which this Convention enters into force;

(ii)

in respect of other taxes as to income arising in any fiscal year

beginning on or after the first day of January in the year next

following the year in which this Convention enters into force;

(b) in Malta, in respect of taxes which are levied for any year of assessment

beginning on or after the first day of January in the second calendar year

immediately following the year in which the Convention enters into

force.

Article 29

TERMINATION

This Convention shall remain in force until terminated by a Contracting

State. Either Contracting State may terminate the Convention, through diplomatic

channels, by giving notice of termination at least six months before the end of any

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

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

(a) in Portugal

(i)

in respect of taxes withheld at source, the fact giving rise to them

appearing on or after the first day of January next following the

date on which the period specified in the said notice of

termination expires;

(ii)

in respect of other taxes as to income arising in the fiscal year

beginning on or after the first day of January next following the

date on which the period specified in the said notice of

termination expires;

(b) in Malta, in respect of taxes which are levied for any year of assessment

beginning on or after the first day of January of the second calendar

year next following the date in which the period specified in the said

notice of termination expires.

IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their

respective Governments, have signed this Convention.

DONE at Lisbon, this 26th day of January, 2001 in duplicate in the English and

Portuguese languages, both texts being equally authentic.

For the Government of Malta

For the Government of the Portuguese Republic

Joe Borg

Jaime Gama

Minister of Foreign Affairs

Minister of Foreign Affairs

PROTOCOL

At the moment of the signature of the Convention between the Portuguese

Republic and Malta for the Avoidance of Double Taxation and the Prevention of

Fiscal Evasion with Respect to Taxes on Income, both parties have agreed upon the

following provisions, which form an integral part of the Convention

1. Ad Article 10

Under the Malta law in force, income tax paid by a company, as is referable

to that part of its profits which is distributed by way of dividends, is assimilated with

the personal income tax of the shareholder in receipt of such a dividend. In the

shareholder’s hands, the dividend is charged to tax after being grossed up with the

tax paid by the company on the profits out of which such dividend is paid and the

relevant amount of tax, so assimilated, is set off against the shareholder’s tax

liability on his income from all sources liable to tax.

With reference to Article 10, it is understood that paragraph 2(b) thereof

shall be applicable only so long as the above system continues in force. If this will

be changed the rate of tax referred to in paragraph 2(a) shall apply in Malta in

relation to the dividends paid by a company which is a resident of Malta to a resident

of Portugal.

2. Ad Article 14

In relation to income referred to in paragraph 1, it may be taxed in the other

Contracting State if the remuneration for the services performed in that other State is

derived from residents of the first mentioned State and exceeds the equivalent of

30000 euros during the fiscal year.

3. Ad Article 22

a)

It is understood that under legislation currently in force, Portugal does not

extend relief for underlying tax in respect of tax paid by a company on profits out of

which dividends are paid to non-residents. Should Portugal extend relief for

underlying tax under its domestic tax provisions to non-residents, the competent

authorities shall consult each other with a view to extending such relief for

underlying tax to dividends paid by a company resident in Malta to a company

resident in Portugal. Such consultations shall be held not later than six months from

the date of entry into force of the legislation;

b)

In the case of dividends paid by a company resident in Malta to a resident of

Portugal, the net dividend shall be grossed up in Portugal with the rates laid down in

Article 10 (2)(a)(i) or (ii), as applicable, computed with reference to the net amount

of the dividends. The relief against the tax chargeable in Portugal shall be limited to

the Portuguese tax on the amount so grossed up.

4. Ad Article 23

The provisions of paragraph 3 do not hinder the application of any provision

of the tax law of a Contracting State concerning the deduction of interest which is in

force at the date of signature of this Convention (there being included any future

modification of the provisions that do not change the general nature).

5. The provisions of this Convention shall not be interpreted as limiting in any

way the exemptions, deductions, credits or other reliefs that are or will be granted

(a) by the law of a Contracting State for the purpose of the assessment of

the taxes levied by that State; or

(b) by any other Agreement signed by any of the Contracting States.

IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their

respective Governments, have signed this Protocol.

DONE at Lisbon, this 26th day of January, 2001 in duplicate in the English and

Portuguese languages, both texts being equally authentic.

For the Government of Malta

For the Government of the Portuguese Republic

Joe Borg

Jaime Gama

Minister of Foreign Affairs

Minister of Foreign Affairs