DON JUAN CARLOS
KING OF SPAIN
For what?
on 15 November 1979 the Plenipotentiary of Spain signed in Madrid, together with the Plenipotentiary of Poland, both appointed in good and due form to that effect, the Agreement between the Government of Spain and the Government of the People's Republic of Poland to prevent double taxation in respect of income and capital taxes,
Viewed and examined
the 30 articles and the Protocol making up that Convention,
Approved
by the Cortes Generales, and therefore
authorised
for ratification.
I come to approve and ratify
what it provides for, as I hereby approve and ratify it, promising to comply with it, observe it and ensure that it is fulfilled and observed in a timely manner in all its parts, to the end of which, for further validation and firmness,
I order
issue this Instrument of Ratification signed by Me duly sealed and endorsed by the undersigned Minister for Foreign Affairs.
Given in Madrid on 20 June 1980.
JUAN CARLOS R.
The Minister for Foreign Affairs,
MARCELINO OREJA AGUIRRE
CONVENTION BETWEEN THE GOVERNMENT OF SPAIN AND THE GOVERNMENT OF THE POPULARY REPUBLIC OF POLAND TO AVOID DOUBLE IMPOSITION WITH REGARD TO RENT AND CAPITAL TAXES
The Government of Spain and the Government of the People ' s Republic of Poland, having regard to the principles and clauses of the Final Act of the Conference on Security and European Cooperation, eager to continue the development and acceleration of their economic relations, have decided to conclude a convention to avoid double taxation with respect to income and capital taxes, agreeing as soon as possible.
Article 1. Personal ambit.
This Convention shall apply to residents of one or both Contracting States.
Article 2. Taxes included.
1. This Convention shall apply to taxes on income and capital, established on behalf of each Contracting State, whatever the manner in which they are required.
2. Income and capital taxes are all taxes that tax the total income, total capital, or elements of income or capital, including taxes that tax profits from the disposal of movable or immovable property, as well as taxes on the valuation of capital.
3. The current taxes to which the Convention will apply are in particular the following:
(a) In Spain:
1. Personal income tax;
2. Corporate tax;
3. The estate tax.
(referred to as 'the Spanish tax')
(b) In Poland:
1. Income tax (‘podatek dochodowy’);
2. The wage and salary tax (‘podatek od wynagrodzen’);
3. The surcharge on income tax or wage and salary tax ("podatek wyrównawczy").
(referred to as ‘Polish tax’).
4. The Convention shall also apply to any identical or substantially equal taxes established after the date of signature of this Convention on an additional basis with respect to taxes currently in existence or replacing them. The competent authorities of the Contracting States shall notify each other of any substantial changes to their respective tax laws.
Article 3. General definitions.
1. In this Convention, and unless inconsistent with the context:
(a) The terms ‘Contracting State’ and ‘the other Contracting State’ shall mean Spain or the People's Republic of Poland, as required by the context respectively.
(b) The word ‘person’ shall mean both a natural person and a Company and any other grouping of persons.
(c) The word "Company" means any legal person or entity that is considered a legal person for tax purposes.
(d) The terms ‘Company of one Contracting State’ and ‘Company of the other Contracting State’ shall mean, respectively, an Enterprise administered by a resident of a Contracting State and an Enterprise administered by a resident of another Contracting State.
(e) ‘competent authority’ means:
— in Spain, the Minister of Finance to any other authority to which the Minister delegates.
— in Poland, the Minister for Finance or his authorised representative.
(f) The word “nationals” shall mean any individual possessing the nationality of a Contracting State and any legal persons or other entities whose legal status would result from the law in force in a Contracting State.
(g) “International traffic” means any transport by means of a ship, aircraft, rail or road transport vehicle by an Enterprise whose place of effective management is situated in a Contracting State, except where the ship, aircraft or vehicle is used only between locations located in the other Contracting State.
2. With regard to the application of this Convention by a Contracting State, any word expression which has not been objected to by a specific definition shall, unless it is incompatible with the context, have the meaning to it by virtue of the legal provisions of that Contracting State which make reference to the taxes covered by this Convention.
Article 4. Residents.
1. For the purposes of this Convention, the term ‘resident of a Contracting State’ means any person who, under the law of that State, is obliged to pay tax on account of his domicile, residence, seat of the address, or any other criterion of a similar nature, but those persons who are obliged to pay tax in that State are excluded from that State only in relation to income received from sources located in that State or produced by capital located in that State.
2. Where, pursuant to paragraph 1, a natural person is resident in both Contracting States, the matter shall be settled in accordance with the following rules:
(a) Be considered a resident of the Contracting State in which he has permanent residence. If you have a permanent home in both Contracting States, you will be considered a resident of the Contracting State with which your personal and economic relations (centre of vital interests) are closer.
(b) If the Contracting State in which it has its centre of vital interests cannot be determined, or if it does not have a permanent home in one of the Contracting States, it shall be considered a resident of the Contracting State in which it has its habitual residence.
(c) If he is habitually resident in the two Contracting States or if he is not habitually resident in either Contracting State, he shall be considered a resident of the Contracting State of which he is a national.
(d) If the question of residence cannot be resolved in accordance with subparagraph (c), the competent authorities of the Contracting States shall resolve the matter by mutual agreement.
3. In cases where, pursuant to paragraph 1, a non-natural person is a resident of the Contracting States, he or she shall be considered a resident of the Contracting State in which his or her place of effective management is situated.
Article 5. Permanent establishment.
1. For the purposes of this Convention, the term ‘permanent establishment’ shall mean a fixed place of business through which the business activity of the Enterprise is exercised in whole or in part.
2. The term ‘permanent establishment’ shall include, in particular:
(a) A management headquarters;
(b) A branch office;
(c) An office;
(d) One factory;
(e) One workshop;
(f) A mine, quarry or other place of extraction of natural resources;
(g) A construction or assembly project or work that exists for more than twelve months.
3. The term ‘permanent establishment’ shall not include:
(a) The use of goods and services for the sole purpose of storing, displaying or serving genders or goods belonging to the Enterprise.
(b) Maintenance of stocks of genders or goods belonging to the Enterprise, for the sole purpose of storage, display or supply.
(c) Maintenance of stocks of genders or goods belonging to the Enterprise, for the sole purpose of their development by another Enterprise.
(d) The maintenance of a fixed place of business for the sole purpose of purchasing or obtaining information on behalf of the Enterprise.
(e) The maintenance of a fixed place of business for the sole purpose of publicity, the provision of information, scientific research or similar activities of an auxiliary or preparatory nature, on behalf of the Enterprise.
4. A person in a Contracting State acting on behalf of an Enterprise of the other Contracting State — provided that he is not an independent agent to which paragraph 5 applies — shall be regarded as a permanent establishment of the first State, if he habitually has and exercises in that State the power to conclude contracts on behalf of the Enterprise, unless his activities are limited to those referred to in paragraph 3.
5. An Enterprise of one Contracting State shall not be considered to have a permanent establishment in the other Contracting State on the sole ground that it operates in that other State through a broker, a general commissioner or other independent agent, provided that such persons are engaged in the normal exercise of their business.
6. The fact that a Company which is a resident of a Contracting State dominates a Company resident of the other State or is dominated by such a Company (either through a permanent establishment or otherwise) shall not in itself be sufficient for one or the other to have the status of permanent establishment of the other.
Article 6. Real estate income.
1. The income of immovable property, including that of agriculture and forestry, may be taxed in the Contracting State in which such property resides.
2. The term ‘real property’ shall be defined in accordance with the law of the Contracting State in which the property in question resides. In any event, the term shall include the attachments to immovable property, livestock and tools used in agriculture and forestry, the rights to which the provisions of general legislation relating to immovable property apply, usufruct rights in immovable property, and variable or fixed remuneration rights paid in exchange for the exploitation of mineral deposits, sources and other natural resources, or for the right to such exploitation of mineral deposits, sources and other natural resources, or for the right to exploitation. Ships, vessels and aircraft shall not be considered as immovable property.
3. The provisions of paragraph 1 shall apply to income from direct use, lease transfer or other use of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income of the immovable property of an Enterprise and to the income of immovable property used for the provision of professional services.
Article 7. Commercial benefits.
1. Profits obtained by an Enterprise of one Contracting State shall be taxable only in that State, unless the Enterprise exercises trade in the other Contracting State through a permanent establishment situated therein. If the Enterprise engages in trade in the above terms, the profits of the Enterprise may be taxed in the other State, but only in that proportion of the profits liable to be charged to that permanent establishment.
2. Subject to paragraph 3, in cases where an Enterprise of one Contracting State carries out trade in the other Contracting State through a permanent establishment located in the dungeon, the benefits that it might expect to obtain if it were a separate Enterprise engaged in the same or similar activities under the same or similar conditions shall be charged in each Contracting State to the relevant permanent establishment and provided that it deals with the Enterprise of which it is a permanent establishment with full independence.
3. The benefits of a permanent establishment shall be determined by deducting expenses incurred for the purposes of the permanent establishment, including management expenses and general administrative expenses, whether or not incurred in the State in which the permanent establishment resides.
4. Provided that it has been customary practice in a Contracting State to determine the profits attributable to a permanent establishment on the basis of the allocation of aliquot parts of the total profits of the Enterprise or its various components, nothing in paragraph 2 shall prevent that Contracting State from determining the taxable profits by means of the allocation of aliquot parts that is normal practice, provided that the procedure for such allocation of aliquot parts gives a result that is in conformity with the principles set out in this Article.
5. Profits shall not be charged to a permanent establishment on the sole ground that the permanent establishment purchases genders or goods for the Enterprise.
6. For the purposes of the preceding paragraphs, the benefits to be charged to the permanent establishment shall be determined year by year in accordance with the same procedure, unless there are reasonable and sufficient grounds for not doing so.
7. Where profits include income concepts that are treated separately in other articles of this Convention, the provisions of this article shall be without prejudice to the provisions of those other articles.
Article 8. International transport.
1. Profits arising from the operation of ships or aircraft in international traffic shall be taxable only in the Contracting State in which the effective place of management of the Enterprise is located, whether such vessels or aircraft are owned by the Enterprise or are operated by the Enterprise on a lease basis.
2. If the place of effective management of an Enterprise engaged in the carriage within the framework of international traffic is on board a ship, it shall consider it to be located in the Contracting State in which the port of registration of the ship is located or, if there is no such port of registration, in the Contracting State of which the one operating the ship is resident.
3. Profits arising from the operation of rail or road transport vehicles within the framework of international traffic shall be taxable only in the Contracting State in which the place of effective management of the Enterprise resides.
4. The provisions of paragraphs 1 and 3 shall extend to profits arising from participation in a concentrated holding of resources, in a pooled commercial holding or in an agency operating internationally.
Article 9. Associated enterprises.
1. If: (a) an Enterprise of one Contracting State participates directly or indirectly in the direction, or control, or in the capital of an Enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the direction or control, or in the capital of an Enterprise of one Contracting State and of an Enterprise of the other Contracting State, and in either and the other case, the existing commercial or financial relations between the two Enterprises are created or imposed on them conditions other than those of independent Enterprises, any profits which, if such conditions had not been met, would have been obtained by one of the Enterprises but which, by reason of the latter, have not been obtained, may be included in the profits of that Enterprise and taxed accordingly.
2. If a Contracting State included among the profits of an Enterprise of that State and taxed accordingly, profits for which an Enterprise of the other Contracting State had been taxed in that other State, and the profits thus included were profits which would have been earned by the Enterprise of the State mentioned first if the conditions created between the two Enterprises had been those of the relations between two independent Enterprises, then the other State would adjust adequately the amount of the tax on those profits. In determining the measure of such adjustment, due account shall be taken of the other provisions of this Convention, without prejudice to consultations, if necessary, between the competent authorities of the Contracting States.
Article 10. Dividends.
1. Dividends paid by a Company that is resident of one 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 which pays the dividends is resident, and always in accordance with the law of that State, although the tax levied on them shall not exceed: (a) 5 per 100 of the gross amount of the dividends in the event that the recipient is a Company (provided that it is not a Civil Society) which holds directly at least 25 per 100 of the voting rights of the Company which pays the dividends; (b) 15 per 100 of the gross amount of the dividends in all other cases.
The competent authorities of the Contracting States shall regulate by common agreement the detailed rules for the application of paragraph 2.
This paragraph shall not affect the taxation of profits of the Company from which dividends are paid.
3. Where used in this Article, the term ‘dividends’ shall mean income from shares or other rights of participation in profits, except those relating to outstanding claims, as well as income from other corporate rights assimilated to the income of shares under the tax law of the State of which the Company which distributes the dividends is resident.
4. Paragraphs 1 and 2 shall not apply if the recipient of dividends who, despite being a resident of a Contracting State, engages in trade in the other Contracting State of which the Company is resident by means of a permanent establishment situated in that other Contracting State, or provides in that other State professional services on a fixed basis in that State and the shares in respect of which the dividends are paid have an effective relationship with such permanent establishments or fixed base. In such a case, the provisions of Article 7 or Article 14 shall apply as appropriate.
5. If a Company which is a resident of a Contracting State receives profits or income from the other Contracting State, that other State may not tax dividends paid by the Company to persons who are not residents of that other State or subject the undistributed profits of the Company to a tax on undistributed profits, even if it is paid dividends or the undistributed profits are constituted in whole or in part by profits or income obtained in that other State.
Article 11. Interest.
1. Interest earned in one Contracting State and paid to a resident of the other Contracting State shall be taxable only in that other State.
2. Where the term ‘interest’ is used in this Article, it shall mean income derived from debts of any kind, whether or not secured by mortgage, whether or not they bear a right to participate in the debtor's profits, and in particular income derived from State securities and bonds and bonds, including for that purpose premiums and prizes attached to such securities, bonds or bonds. Interest earned on late payments shall not be regarded as interest for the purposes of this Article.
3. Paragraph 1 shall not apply if the recipient of the interest is resident in a Contracting State and in the other Contracting State in which the interest is incurred he exercises trade by means of a permanent establishment situated in that State or provides in that other State professional services on a fixed basis based on that State, provided that the debt in respect of which the interest is paid is effectively related to that permanent establishment or fixed base. In such a case, the provisions of Article 7 or 14 shall apply, as appropriate.
4. If, due to the existence of a special relationship between the payer and the recipient or between both and a third person, the amount of interest paid exceeds, in view of the debt for which they are paid, the amount that would have been agreed between the payer and the recipient in the absence of such a relationship, the provisions of this Article shall apply only to the amount recently mentioned. In such a case, excess payments shall continue to be taxable in accordance with the laws of each Contracting State, to the detriment of the other provisions of this Convention.
Article 12. Royalties.
1. Fees accrued in one Contracting State and paid to a resident of the other Contracting State shall be taxable in that other State.
2. However, such royalties may be taxed in the Contracting State to which they accrue and in accordance with the law of that State. However, the tax with which they are taxed shall not exceed 10 per cent of the gross amount of the fees, provided that the fees are taxable in the other Contracting State.
3. Notwithstanding paragraph 2, royalties accruing from copyright and other similar payments which, by reason of the production or reproduction of any literary, dramatic, musical or artistic work (excluding royalties accruing from cinematographic films and works filmed or recorded on videotape for use on television) accrue in one Contracting State and are paid to a resident of the other Contracting State shall be taxable only in that other State.
4. The term ‘royalties’ in this Article shall denote payments of any kind received in exchange for the use, or right of use, of any exclusive title for the reproduction of literary, artistic or scientific works, including cinematographic films and television or broadcasting tapes, as well as any patent, mark, design or model, plan, formula or secret process; or for the use or right of use of commercial or scientific industrial equipment; or for information on industrial, commercial or scientific experience.
5. Paragraphs 1, 2 and 3 shall not apply if the recipient of the royalties resident in a Contracting State exercises trade in the other Contracting State, in which the royalties are accrued through a permanent establishment located therein, or provides professional services from a fixed base situated therein, and the right or goods in respect of which the royalties are paid shall have an effective relationship with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14 shall apply as appropriate.
6. The fees shall be deemed to accrue in a Contracting State where the payer is that State, a political subdivision thereof, a local authority or a resident of that State. However, in cases where the person paying the fees, whether resident or not of a Contracting State, has a permanent establishment in a Contracting State in respect of which the obligation to pay the fees is incurred and such fees are held by that permanent establishment, the fees shall be deemed to be accrued in the Contracting State in which the permanent establishment is situated.
7. If, because of the existence of a special relationship between the payer and the recipient, or between them and any other person, the amount of the fees paid is such that, in view of the use, right or information in exchange for which they are paid, it exceeds the amount that would have been agreed by the payer and the payer in the absence of such a relationship, in that case the provisions of this Article shall apply only to the amount referred to last. In such a case, the portion of the payments that exceeds shall remain taxable in accordance with the law of each Contracting State, taking into account the other clauses of this Convention.
Article 13. Capital gains.
1. Profits from the sale of immovable property, as defined in Article 6(2), or from the sale of shares or similar rights in a Company whose assets consist mainly of immovable property, may be taxable in the Contracting State in which such immovable property is situated.
2. The amount of the sale of immovable property forming part of the commercial property of a permanent establishment held by the Enterprise of one Contracting State in the other Contracting State, or of the movable property on a fixed basis by the resident of a Contracting State performing professional services, together with the amount of the sale of that permanent establishment (only or together with the entire Enterprise), or of that base, may be taxable in the second State. However, the amount of the sale of movable property of the kind referred to in Article 22(3) shall be taxable only in the Contracting State in which, in accordance with that Article, such movable property is taxable.
3. The amount of the sale of any property other than those referred to in paragraphs 1 and 2 shall be taxable only in the Contracting State in which the seller resides.
Article 14. Independent personal services.
1. Income earned by a resident of a Contracting State by his professional services or other independent activities of a similar nature shall be taxable only in that State, unless the resident normally has a basis in the other Contracting State for the exercise of his activities. If he has this fixed base, the income may be taxable in the other Contracting State, but only in the amount attributable to that fixed base.
2. The term "professional services" includes particularly independent scientific, literary, artistic, training or teaching activities, as well as independent activities of Physicians, Lawyers, Engineers, Architects and Dentists.
Article 15. Dependent personal services.
1. Subject to articles 16, 18 and 19, wages, salaries and other similar remuneration obtained by a resident of a Contracting State under employment shall be taxable only in that State, unless the employment is performed in the other Contracting State. If the employment is performed as described above, the remuneration thus obtained may be obtained in this other State.
2. Notwithstanding the provisions of paragraph 1, remuneration obtained by the resident of a Contracting State by virtue of employment in the other Contracting State shall be taxable only in the state referred to in the first instance if:
(a) The recipient shall live in the other State for a period or periods not exceeding a total of one hundred and eighty-three days of the relevant calendar year; and
(b) The remuneration is paid by or on behalf of an employer who is not a resident of the other State; and
(c) Remuneration is not on behalf of a permanent establishment or a fixed basis which the employer has in that other State.
3. Notwithstanding the foregoing provisions of this article, remuneration by virtue of an embroidered employment of a ship, aircraft, on a train or on a road transport vehicle in international traffic may be taxable in the Contracting State in which the seat of the effective management of the Company is situated.
Article 16. Councillors' salaries.
A similar salary and remuneration of an administrator obtained by a resident of a Contracting State as a member of the Board of Directors of a Company residing in the other Contracting State may be taxable in that other State.
Article 17. Entertainers and sportspersons.
1. By way of derogation from Articles 14 and 15, revenue earned by amusing actors, such as theatre actors, film artists, radio or television artists, musicians, and sportsmen, by virtue of their personal activities as such, may be taxable in the Contracting State in which they carry out these activities.
2. If the income obtained from the exercise of personal activities such as that of a fun person or athlete is not for that artist or athlete, but for another person, such income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxable in the Contracting State in which the fun person or athlete exercises such activities.
Article 18. Pensions.
Subject to Article 18(2), pensions and other similar remuneration paid to a resident of a Contracting State under previous employment shall be taxable only in that State.
Article 19. Public scores.
1. (a) Remuneration, which, without having the character of a pension, is paid by a Contracting State, or by a political subdivision or local authority of that State to any natural person for services rendered to that State or to the subdivision, or to the authority thereof, shall be taxable only in that State.
(b) However, such remuneration shall be taxable only in the other Contracting State if the services are provided in that State and the recipient is a resident of that other Contracting State, and is:
(i) Subject of that State; or
(ii) Not to be resident of that State solely for the purpose of performing these services.
2. (a) Any pension paid by a Contracting State, or from the funds created by that Contracting State, or by a political subdivision or local authority thereof, to any natural person for services rendered to that State or to that Branch or local authority of that State shall be taxable only in that State.
(b) However, such pensions shall be taxable only in the other Contracting State if the recipient is a subject and resident of that State.
3. The provisions of Articles 15, 16 and 21 shall apply to remuneration and pensions for services rendered in connection with any business operated by a Contracting State or a political subdivision or a local authority thereof.
Article 20. Teachers and students.
1. A Professor or Professor who visits a Contracting State for a period not exceeding two years, for the purpose of teaching or conducting research at a University, College, School or other teaching centre of that Contracting State and who is, or was immediately prior to this visit, resident of the other Contracting State, shall be exempt from taxation in the Contracting State referred to first on any remuneration for such teaching or research.
2. The provisions of paragraph 1 shall not apply to research revenue if it is not for the public interest, but for the particular benefit of a specific person or persons.
3. A student, business apprentice or one who is preparing to be in a Contracting State only for study or preparation, whether or not immediately prior to his or her stay in that State resident of the other Contracting State, shall not be subject to taxation in the State mentioned above in the first place for payments received for his or her sustenance, education or preparation, provided that such payments are made by persons or entities located outside the State mentioned in the first place.
4. A student of a university or other higher education centre of one of the Contracting States, or a student of a commercial, technical, agricultural or forestry school who is working in the other Contracting State for a period or periods not exceeding one hundred and eighty-three days of the calendar year which is or has been immediately prior to such a resident visit of one of the Contracting States, shall not be subject to taxation in the other Contracting State for remuneration obtained in that State, provided that the services relate to his studies or preparation and the remuneration constitutes a necessary gain for its maintenance.
Article 21. Other income.
1. Income items of a resident of a Contracting State, wherever they arise, which are not listed in previous articles of this Convention, shall be taxable only in that State.
2. The provisions of paragraph 1 shall not apply to income not derived from immovable property, as defined in Article 8(2), if the recipient of such income, being a resident of a Contracting State, carries out commercial transactions in the other Contracting State by means of a permanent establishment based there, or performs independent personal services on a fixed basis based there, and the right or property for which the income is paid has an effective connection with such a permanent establishment or fixed base. In this case, the provisions of article 7 or article 14, as the case may be, shall apply.
Article 22. Capital.
1. Capital represented by immovable property, as defined in Article 6(2), may be taxable in the Contracting State in which such property resides.
2. Capital represented by movable property forming part of the commercial property of a permanent establishment of an Enterprise, or by movable property belonging to a fixed base used for the performance of professional services may be taxable in the Contracting State in which the permanent establishment or fixed base is situated.
3. Vessels, aircraft, rail transport vehicles or road transport vehicles employed in international traffic and movable property belonging to the movement of such ships, aircraft and vehicles shall be taxable only in the Contracting State in which the effective headquarters of the Enterprise is located.
4. All other capital elements of a resident of a Contracting State shall be taxable only in that State.
Article 23. Elimination of double taxation.
1. In Spain double taxation will be avoided as follows:
(a) If a resident of Spain obtains income or possesses capital which, in accordance with the provisions of this Convention, may be taxable in Poland, Spain, subject to subparagraph (b) of this subparagraph, shall exempt from tax such income or capital, but, when calculating the tax on the rest of the income or capital of that person, he may apply the rate of taxation which has been applicable if the exempt income or capital has not been taxed.
(b) Spain, by taxing its residents, includes on the basis that, in accordance with the provisions of Articles 10 and 12 of this Convention, they may be taxed in Poland, it shall deduct from the amount of tax calculated on that basis an amount equal to tax paid in Poland. However, this discount shall not exceed the part of the Spanish tax calculated before the discount has been declared, which shall be in due proportion to the revenue which, in accordance with the provisions of Articles 10 and 12 of this Convention, is subject to taxation in Poland.
2. In the People's Republic of Poland double taxation shall be avoided as follows:
(a) If a resident of Poland obtains income or possesses capital which, in accordance with the provisions of this Agreement, may be taxable in Spain, Poland, subject to the provisions of subparagraph (b), he shall exempt such income or capital from taxation, but when calculating tax on the rest of the income or capital that person may apply the rate of taxation which has been applicable if the exempted income or capital has not been taxed.
(b) If a resident of Poland obtains income which, in accordance with the provisions of Articles 10 and 12, may be taxable in Spain, Poland shall deduct from the income tax of that person an amount equal to the tax paid in Spain. This discount shall not, however, exceed the part of the tax calculated before it has declared the deduction, which shall be appropriate to the revenue that may be taxed in Spain.
Article 24. Non-discrimination.
1. Citizens of one Contracting State, whether or not they reside in one of the Contracting States, shall not be subject in the other Contracting State to any tax or any other requirement with it which is different from or more burdensome than the tax and related requirements to which the citizens of the other State are or may be subject in the same circumstances.
2. The imposition by an establishment which an Enterprise of one Contracting State has in the other Contracting State shall not be enforceable in that other Contracting State less favourably than the imposition by Companies of that other State carrying out the same activities.
This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State personal discounts, aids and reductions for the purposes of taxation in view of their marital status, family responsibilities granted to their own residents.
3. Except where the provisions of Article 9(4) of Article 11 or Article 12(7) apply, interest, royalties and other disbursements paid by an Enterprise of one Contracting State to a resident of the other Contracting State in order to determine the taxable profits of that Enterprise shall be deducted on the same condition as if they had been paid to a resident of the State referred to first.
Similarly, any debt owed by an Enterprise of one Contracting State to a resident of the other Contracting State for the purpose of determining the taxable capital of that Enterprise shall be deductible as if it had been incurred with a resident of the State referred to first.
4. Enterprises of a Contracting State whose capital is wholly or partly owned or controlled by one or more residents of the other Contracting State, or is controlled directly or indirectly by it or by them, shall not be subject in the other Contracting State referred to above to any taxation or any related requirement that is different from or more burdensome than the tax and related requirements to which other similar Enterprises of the State referred to above are subject or may be subject.
5. The term ‘taxation’, as used in this Article, means taxes of any kind and description.
6. It is hereby certified that the diversified collection of taxes on income, profits and capital, established in the People's Republic of Poland for social enterprises, shall not affect the provisions of this Article.
7. The provisions of this article shall not be interpreted as obliging the Contracting State to grant to residents of the other Contracting State benefits granted to residents of any other Contracting State under agreements concluded with that other State.
Article 25. Mutual agreement procedure.
1. If a resident of a Contracting State considers that the actions of one or both Contracting States are or will result in taxes for him that are not in accordance with this Convention, he may, notwithstanding the remedies offered by the national laws of those Contracting States, refer his case to the competent authority of the Contracting State of which he is a resident, or, if his case falls within the meaning of Article 23 (1), to that of the Contracting State of which he is a citizen. This case shall be submitted within a period of three years from the date of the first notification of the action giving rise to the imposition of a dispute with the Convention.
2. The competent authority shall endeavour, if it considers that the objection is justified and cannot reach an appropriate solution from the other State, to avoid the imposition which is not in accordance with the Convention.
3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising from the interpretation or application of the Convention. They may also deliberate together to eliminate double taxation in cases not covered by the Convention.
4. The competent authorities of the Contracting States may communicate directly with each other in order to reach agreement within the meaning of the preceding paragraphs. Where it is considered advisable, in order to reach agreement, to have an oral exchange of views, such exchanges may take place through a Commission composed of representatives of the competent authorities of the Contracting States.
5. The competent authorities shall, by means of a separate mutual agreement, establish methods of application of this Convention, and in particular the formalities to be carried out by a resident of a Contracting State in order to be granted in the other Contracting State exemption from, or reduction of, taxes on the income referred to in Articles 10, 11 and 12 and obtained in that other State.
Article 26. Exchange of information.
1. The competent authorities of the Contracting States shall exchange such information as may be necessary for the implementation of this Convention, as well as information concerning the national laws of the Contracting States to which this Convention extends to the extent that such information is imposed in accordance with it. Any information thus exchanged shall be treated confidentially and disclosed only to persons or authorities (including courts or administrative authorities) dealing with the taxation or collection of taxes which are the subject of this Agreement, or dealing with procedures, remedies or solutions relating to cases of taxation. These persons or authorities shall use the information only for these purposes. They may disclose information in public proceedings or in court decisions.
2. In no case shall the provisions of paragraph 1 be interpreted so as to impose on one of the Contracting States the obligation to:
(a) To implement administrative measures other than the laws or administrative practice of that Contracting State or the other;
(b) Provide details that cannot be obtained under the laws or in the normal course of administration of the latter or of the other Contracting State;
(c) To provide information that discovers any commercial, business, industrial or professional secrecy, any industrial process, or information whose disclosure is contrary to public policy.
Article 27. Diplomatic and Consular Officers.
Nothing in this Convention shall affect the tax privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.
Article 28. Territorial extension.
In this Convention, unless the context otherwise requires:
1. The term ‘Spain’ means the Spanish State, including any area outside Spanish territorial waters which, in accordance with international law, has been or may in the future be designated, under Spanish laws concerning the continental shelf, as an area within which Spain's rights with respect to the sea bed, the subsoil and its natural resources may be exercised.
2. The term ‘Poland’ means the People's Republic of Poland, including any area outside Polish territorial waters, in accordance with international law, has been or may in the future be designated, under the laws of Poland concerning the continental shelf, as an area within which Poland's rights with respect to the seabed and subsoil and its natural resources may be exercised.
Article 29. Entry into force.
1. This Convention shall be subject to ratification and instruments of ratification shall be exchanged in Warsaw.
2. The Convention shall enter into force after the exchange of instruments of ratification and its provisions shall apply:
(a) In respect of taxes held at source, the amounts collected on 1 January of the calendar year following the year in which the Convention enters into force, or after 1 January of that year;
(b) With regard to other taxes on income and taxes on capital, taxable for the fiscal year beginning on 1 January of the calendar year immediately following the year in which the Convention enters into force, or after 1 January of that year.
Article 30. Termination.
This Convention shall remain in force until it is denounced by one of the Contracting States. Any Contracting State may denounce it, by diplomatic means, by giving notice of its termination in writing at least six months before the end of the calendar year, after a period of five years from the date of entry into force of the Convention. In such a case, the Convention shall cease to apply:
(a) With regard to taxes withheld at source on or after 1 January of the calendar year following immediately the year in which the communication is made.
(b) With respect to other income taxes, and capital taxes, to taxes attributable for any fiscal year beginning on 1 January of the calendar year immediately following the year in which the communication is made, or after 1 January of that year.
In faith, the undersigned, duly authorized to perform this act, sign this Convention, on which they stamp their seals.
Done at Madrid at 15 November 1979, in duplicate, in the Spanish and Polish languages, with equal validity.
For the Government of Spain,
For the Government of the People's Republic of Poland,
Marcelino Oreja Aguirre,
Emil Woftaszek,
Minister for Foreign Affairs
Minister for Foreign Affairs
PROTOCOL
At the time of signing the Convention between the Government of Spain and the Government of the People ' s Republic of Poland on the avoidance of double taxation in respect of income and capital taxes, the undersigned, duly authorized to do so, have agreed that the following clauses are an integral part of the Convention.
‘ADDENDUM’ TO ARTICLE 2
I. It is understood that the Convention will apply to income and capital taxes, irrespective of the level of authority of the respective Contracting State on whose behalf the taxes are established.
‘ADDENDUM’ TO ARTICLE 8
II. It is understood that the provisions of this Article shall cover the benefits accruing from the exploitation of containers for maritime, rail and road transport, as well as air transport and other equipment used directly for international transport in international traffic.
‘ADDENDUM’ TO ARTICLE 12
III. By way of derogation from paragraphs 2 and 3, copyright fees and other similar payments which, by reason of cinematographic films and works filmed or recorded on videotape for use on television, are accrued in one Contracting State and paid to a resident of the other State shall be taxable only in that other State, provided that such cinematographic films or works filmed or recorded on videotape for use on television are supplied to the other Contracting State within the framework of cultural agreements concluded between the Contracting States.
‘ADDENDUM’ TO ARTICLE 17
IV. By way of derogation from paragraphs 1 and 2, income from the activities defined in paragraph 1 carried out within the framework of cultural agreements concluded between the Contracting States shall be exempt from taxation in the Contracting State in which such activities are carried out.
‘ADDENDUM’ TO ARTICLE 24
V. Paragraph 5 shall not cover the Polish fees due on the basis of an undertaking's opening licence.
For the Government of Spain,
For the Government of the People's Republic of Poland,
Marcelino Oreja Aguirre,
Emil Woftaszek,
Minister for Foreign Affairs
Minister for Foreign Affairs
This Convention and its Protocol entered into force on 6 May 1982, the date of the exchange of instruments of ratification between the two countries, in accordance with its Article 29.
What is made public for general knowledge.
Madrid, May 25, 1982.—The Technical Secretary General of the Ministry of Foreign Affairs, José Antonio de Yturriaga Barberán.