CONVENTION BETWEEN THE KINGDOM OF SPAIN AND AUSTRALIA TO AVOID DOUBLE IMPOSITION AND PREVENT TAX EVASION ON RENT TAX
The Kingdom of Spain and Australia, wishing to conclude an agreement to avoid double taxation and prevent tax evasion in the area of income taxes, have agreed as follows:
Article 1. Personal scope.
This Convention applies to persons resident in one or both Contracting States.
Article 2. Taxes covered.
1. The current taxes to which this Convention applies are:
(a) In the case of Australia:
Income tax and resource rental tax on offshore oil exploration or exploitation projects established under Commonwealth of Australia federal law.
(b) In the case of Spain:
(i) The Personal Income Tax; and
(ii) Corporate Tax.
2. This Convention shall also apply to taxes of an identical or similar nature which are established under the laws of the Commonwealth of Australia or the laws of Spain after the date of signature thereof and which are added to or replaced by current taxes.
The competent authorities of the Contracting States shall communicate to each other any substantive amendments made to their respective laws relating to the taxes which are the subject of this Convention within a reasonable period of time following such amendments.
Article 3. General definitions.
1. In this Convention, unless its context indicates a different interpretation:
(a) The term ‘Australia’, used geographically, excludes external territories, with the exception of:
(i) The territory of Norfolk Island;
(ii) The territory of the island of Christmas;
(iii) The territory of the Cocos Islands (Keeling);
(iv) The territory of the Ashmore and Cartier islands;
(v) The territory of Heard Island and McDonald Islands; and
(vi) The territory of the Coral Sea islands,
It includes areas adjacent to the territorial boundaries of Australia [including territories listed under (i) to (vi), inclusive]; for which Australia currently has legislation in force, in accordance with international law, relating to the exploitation of the natural resources of the seabed and subsoil and superjacent waters of the continental shelf;
(b) The term ‘Spain’ means the territory of the Spanish State and, used geographically, designates the territory of the Spanish State including areas outside its territorial sea in which, under international law and its domestic law, the Spanish State may exercise jurisdiction or rights of sovereignty over the seabed, its subsoil and superjacent waters, and its natural resources;
(c) The terms ‘Contracting State’, ‘one Contracting State’ and ‘the other Contracting State’ mean Australia or Spain, depending on the context;
(d) The term ‘person’ includes natural persons, companies and any other grouping of persons;
(e) the term 'company' means any legal person or any entity that is considered a corporation or legal person for tax purposes;
(f) The terms ‘undertaking of one Contracting State’ and ‘undertaking of the other Contracting State’ mean an undertaking operated by a resident of Australia or an undertaking operated by a resident of Spain, depending on the context;
(g) The term 'tax' means the Australian tax or the Spanish tax, depending on the context;
(h) The term “Australian tax” refers to taxes imposed by Australia to which this Convention applies under Article 2;
(i) The term 'Spanish tax' means the taxes established by Spain to which this Convention applies under Article 2;
(j) ‘competent authority’ means:
(i) In the case of Australia, the Tax Commissioner or an authorized representative of the Commissioner; and
(ii) In the case of Spain, the Minister of Economy and Finance or his authorized representative.
2. In this Convention, the terms ‘Australian tax’ and ‘Spanish tax’ do not include penalties or interest payable under the laws of any of the Contracting States relating to the taxes to which this Convention applies under Article 2.
3. For the purposes of the application of this Convention by a Contracting State, any term not defined in this Convention shall, unless the context of such expression indicates a different meaning, have the meaning attributed to it by the law of that State, concerning taxes which are the subject of the Convention, in force at the time of application.
Article 4. Residence.
1. For the purposes of this Convention, a person is a resident of one of the Contracting States:
(a) In the case of Australia, if the person is a resident of Australia for the purposes of Australian taxes; and
(b) In the case of Spain, if the person is a resident of Spain under Spanish legislation on Spanish taxes.
2. A person is not a resident of a Contracting State for the purposes of this Convention if he is subject to taxation in that State only in respect of income from that State.
3. Where under the preceding provisions of this article a natural person is resident in both Contracting States, his situation shall be resolved as follows:
(a) The person shall be considered a resident only of the Contracting State where he or she has a permanent dwelling at his or her disposal;
(b) If he has permanent housing at his disposal in both or none of the Contracting States, he shall be considered a resident only of the Contracting State with which he has closer personal and economic relations.
For the purposes of the foregoing headings, the possession of the citizenship or nationality of one of the Contracting States by a natural person shall be a factor to be considered in determining the intensity of his personal and economic relations with that State.
4. Where, under the provisions of paragraph 1, a person other than a natural person is a resident of both Contracting States, he or she shall be considered a resident only of the Contracting State in which his or her place of effective management is located.
Article 5. Permanent establishment.
1. For the purposes of this Agreement, the term ‘permanent establishment’, with reference to an undertaking, means a fixed place of business through which the undertaking carries out all or part of its activity.
2. The term ‘permanent establishment’ includes, in particular:
(a) Management offices;
(b) Branches;
(c) Offices;
(d) Factories;
(e) Workshops
(f) Mines, oil or gas wells, quarries or any other place of extraction of natural resources;
(g) Agricultural, livestock or forestry properties;
(h) Construction, installation or assembly work for a period of more than 12 months.
3. An undertaking shall not be deemed to have a permanent establishment solely because of:
(a) The use of facilities for the sole purpose of storing, displaying or delivering goods or goods belonging to the enterprise;
(b) The maintenance of a warehouse of goods or goods belonging to the enterprise for the sole purpose of storing, displaying or delivering them;
(c) The maintenance of a deposit of goods or goods belonging to the undertaking for the sole purpose of their processing by another undertaking;
(d) The maintenance of a fixed place of business for the sole purpose of purchasing goods or goods or collecting information for the Enterprise;
(e) The maintenance of a fixed place of business for the sole purpose of carrying out preparatory or auxiliary activities for the Enterprise, such as publicity or scientific research.
4. An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry out activities through that permanent establishment if:
(a) Conducts supervisory activities in that State for a period exceeding twelve months in relation to a construction, installation or assembly work undertaken in that State; or
(b) Uses similar structures, installations, drilling platforms, boats or other substantial equipment:
(i) For the exploration or exploitation of natural resources; or
(ii) In activities related to such exploration or exploitation,
And, in any case, the equipment is used continuously or the duration of such activities exceeds twelve months.
5. A person, other than an agent enjoying independent status, to whom paragraph 6 applies, acting in one of the Contracting States on behalf of an undertaking of another Contracting State, constitutes a permanent establishment of that undertaking in the State referred to above if:
(a) The person habitually holds and exercises in that State powers enabling him to conclude contracts on behalf of the undertaking, unless the activities of that person are limited to those referred to in paragraph 3 and if they have been carried out through a fixed place of business, they have not determined that the place of business is to be regarded as a permanent establishment in accordance with the provisions of that subparagraph; or
(b) By doing so, the person manufactures or transforms in that State, for the enterprise, goods or goods belonging to the enterprise, provided that this clause applies only in respect of goods or goods thus manufactured or processed.
6. An undertaking of one of the Contracting States shall not be considered to have a permanent establishment in the other Contracting State merely because it engages in activities in that other State through a broker, a general commissioner or any other agent enjoying an independent status, provided that such persons act within the ordinary framework of their activity as such brokers or agents.
7. The fact that a company resident of one of the Contracting States controls or is controlled by a company resident of the other Contracting State, or that it engages in activities in that other State (whether by permanent establishment or otherwise), does not by itself render any such company permanent establishment of the other State.
8. The principles set out in the preceding paragraphs of this Article shall apply to determine whether a permanent establishment exists outside both Contracting States for the purposes of Articles 11(5) and 12(5) of this Convention, and whether an undertaking, other than an undertaking of one of the Contracting States, has a permanent establishment in one of the Contracting States.
Article 6. Income from immovable property.
1. Income from immovable property may be taxed in the Contracting State in which the immovable property is situated.
2. In this article, the term ‘real property’ means:
(a) In the case of Australia, it has the meaning attributed to it by Australian law, and also includes:
(i) Lease of land and other shares in, or relating to, land, whether or not improved;
(ii) The right to receive variable or fixed payments for exploitation, or the granting of exploration or exploitation, in respect of the proceeds of exploitation, of mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) In the case of Spain, property which has the status of immovable property under Spanish law and also includes:
(i) Property attached to immovable property;
(ii) The rights to which the provisions of private law relating to real estate apply;
(iii) The use of immovable property; and
(iv) The right to receive variable or fixed payments for the exploitation, or the concession of exploration or exploitation, or for the proceeds of exploitation, of mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources.
3. The lease of land, other holdings in, or relating to, land, and the rights referred to in paragraph 2 shall be deemed to be situated where the land, mineral deposits, oil or gas wells, quarries or natural resources are located, as the case may be, or where exploration activities are carried out.
4. The provisions of paragraph 1 apply to income derived from direct use, lease or shareholding, or from any other form of use of immovable property.
5. The provisions of paragraphs 1, 3 and 4 also apply to income derived from the immovable property of an undertaking and to immovable property used for the provision of independent personal services.
6. Where ownership of shares or other rights in a corporation or other entity confers on its owner the enjoyment in any form, direct use, lease or any other form of use of immovable property held by the corporation or entity, the income derived from such enjoyment, direct use, lease or other use of such rights may be subject to taxation in the Contracting State in which the immovable property is situated.
Article 7. Business profits.
1. The profits of an undertaking in one of the Contracting States may be taxed only in that State, unless the undertaking carries out its business in the other Contracting State through a permanent establishment situated therein. If the undertaking does so, the profits of the undertaking may be taxed in the other State, but only to the extent that they can be attributed to that permanent establishment.
2. Without prejudice to the provisions of paragraph 3, where an undertaking of one of the Contracting States carries out its activity in the other Contracting State by means of a permanent establishment situated therein, in each Contracting State the profits which it could have obtained from being a separate and separate undertaking carrying out the same or similar activities under the same or similar conditions and dealing entirely independently with the undertaking from which it is a permanent establishment or with other undertakings connected with it shall be attributed to that establishment.
3. The determination of the benefit of the permanent establishment shall allow the deduction of the expenses of the enterprise, provided that they are expenses incurred for the realization of the purposes of the permanent establishment (including management expenses and general administrative expenses for the same purposes) and that they would be deductible if the permanent establishment were an independent entity to pay those expenses, whether they are incurred in the State where the permanent establishment is located or elsewhere.
4. No profits shall be attributed to a permanent establishment merely because it buys goods or goods for the undertaking.
5. The provisions of this article shall not prevent the application of the law of a Contracting State concerning the determination of a person's tax obligations in cases where the information available to the competent authority of that State is inadequate for the determination of the benefits to be attributed to the permanent establishment, provided that such legislation is applied, to the extent that the information available to the permanent authority permits, in a manner consistent with the principles of this article.
6. Where profits include income covered separately by other articles of this Convention, the provisions of those articles shall not be affected by those of this Article.
7. The provisions of this article shall not preclude the application of the laws of a Contracting State relating to the taxation of profits from insurance transactions with non-residents provided that, in the event that the relevant legislation in force in any of the Contracting States at the date of signature of this Convention is amended (unless it is so in minor respects without altering its general principle), the Contracting States consult to agree on appropriate amendments to this subparagraph.
8. When:
(a) a resident of one of the Contracting States is entitled as a beneficial owner, either directly or through one or more trust entities, to a share in the profits of an undertaking operated in the other (‘trust’) of a trust estate which is not regarded as a corporation for tax purposes; and
(b) In respect of such an undertaking, the trustee has, in accordance with the principles of article 5, a permanent establishment in that other State,
The undertaking operated by the trustee shall be deemed to have been operated in that other State by that resident by a permanent establishment situated therein, and the participation of that resident in the profits of the undertaking shall be attributed to that permanent establishment.
Article 8. Ships and aircraft.
1. Profits earned by a resident of one of the Contracting States from the operation of ships or aircraft may only be taxed in that State.
2. By way of derogation from paragraph 1, the profits referred to in that paragraph, as soon as they arise from the operation of vessels or aircraft exclusively between places situated in the other Contracting State, may be taxed in that other State.
3. The provisions of paragraphs 1 and 2 are also applicable to the share of profits from the operation of ships and aircraft obtained by a resident of one of the Contracting States for participation in a pool, a joint transport organisation or an international operating agency.
4. For the purposes of this article, the benefits arising from the carriage by ships or aircraft of passengers, livestock, mail, goods or goods, boarded in a Contracting State for unloading elsewhere in that State, shall be regarded as benefits arising from the operation of vessels or aircraft exclusively between places situated in that State.
Article 9. Associated enterprises.
1. When:
(a) An undertaking of one of the Contracting States participates, directly or indirectly, in the direction, control or capital of an undertaking of the other Contracting State; or
(b) The same persons participate, directly or indirectly, in the direction, control or capital of an undertaking of one of the Contracting States and of an undertaking of the other Contracting State,
And, in any case, the terms and conditions in the commercial or financial relations between the two companies differ from those to be agreed by independent companies with total independence in relation to each other, the profits that would have been obtained by one of the companies in the absence of such conditions, and which in fact have not been realized because of them, may be included in the profits of that company and subject to taxation accordingly.
2. The provisions of this Article shall not preclude the application of the law of a Contracting State relating to the determination of a person's tax obligations, including where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an undertaking, provided that such legislation is applied, to the extent possible, in a manner consistent with the principles of this Article.
3. Where the profits in respect of which an undertaking of one of the Contracting States has been taxed in that State are also included, pursuant to paragraphs 1 or 2, in the profits of an undertaking of the other Contracting State and subject to taxation in that other State, and the profits thus included are profits which would have been earned by the undertaking of that other State if the conditions established between the undertakings had been those which had been agreed between independent undertakings relating to each other with complete independence, the State concerned shall first effect the corresponding adjustment of the amount of the tax required on those profits. The other provisions of this Convention shall be taken into account in the determination of such adjustment and the competent authorities of the Contracting States shall consult each other to that end if necessary.
Article 10. Dividends.
1. Dividends paid by a company resident of one of the Contracting States, the beneficial owner of which is resident of the other Contracting State, may be taxed in that other State.
2. Such dividends may be taxed in the Contracting State of which the company paying the dividends is resident, and in accordance with the law of that State, but the tax thus required may not exceed 15 per 100 of its gross amount.
3. The term ‘dividends’ used in this article means the returns on shares and other returns which the tax legislation of the Contracting State of which the company distributing the shares is resident assimilates to the returns on the shares.
4. In the case of Spain, paragraph 2 of this Article shall not apply to income which, in accordance with the provisions of Spanish tax law concerning companies subject to tax transparency, is attributable to the shareholders of those companies, whether or not they are distributed to them. Such income may be taxed in Spain in accordance with its domestic law until it is subject to the Spanish Company Tax.
5. The provisions of paragraph 2 do not apply if the beneficial owner of the dividends, resident in one of the Contracting States, performs independent personal services in the other Contracting State, of which the company paying the dividends is resident, an industrial or commercial activity through a permanent establishment situated in it, or provides in that other State independent personal services through a fixed base situated there, and the share generated by the dividends is effectively linked to those permanent establishments or fixed base. In such cases, the provisions of Article 7 or Article 14 shall apply, as appropriate.
6. Where a company resident of a Contracting State obtains profits or income from the other Contracting State, that other State may not require any tax on dividends paid by the company, except to the extent that such dividends are paid to a resident of that other State or the share generated by the dividends is effectively linked to a permanent establishment or a fixed base situated in that other State, or subject the undistributed profits of the company to a tax on them, even if the dividends paid or the undistributed profits consist, in whole or in part, of profits or income from that other State.
Article 11. Interest.
1. Interest from a Contracting State whose beneficial owner is a resident of the other Contracting State may be taxed in that other State.
2. Such interest may be taxed in the Contracting State from which it comes, and in accordance with the law of that State, but the tax thus required may not exceed 10 per 100 of its gross amount.
3. The term ‘interest’ used in this Article includes interest on public funds or bonds or bonds, with or without mortgage guarantee and with or without a benefit-sharing clause, and interest on any other form of credit as well as other income equivalent to income from money provided by the tax legislation of the Contracting State from which the income derives.
4. The provisions of paragraph 2 do not apply if the beneficial owner of the interest, resident of one of the Contracting States, performs in the other Contracting State, from which the interest is derived, an industrial or commercial activity through a permanent establishment situated in it, or provides in that other State independent personal services through a fixed base situated there, and the credit generated by the interest is effectively linked to that permanent establishment or fixed base. In such cases, the provisions of Article 7 or Article 14 shall apply as appropriate.
5. Interests are considered to come from a Contracting State where the debtor is the State itself, or one of its political subdivisions or local entities, or a resident of that State. However, where the debtor of interest, whether or not resident in one of the Contracting States, has a permanent establishment or a fixed basis in one of the Contracting States for which the debt giving rise to the payment of the interest has been incurred, and where such permanent establishment or fixed base bears the burden of the interest, the interest shall be considered as originating in the State where the permanent establishment or fixed base is situated.
6. A person shall be deemed to be a resident of one of the Contracting States for the purposes of paragraph 5 if he has such consideration under the tax law of that State, irrespective of what may result from the application to that person of the provisions of paragraph 3 or paragraph 4, as appropriate, of Article 4.
7. Where, by reason of the special relations between the debtor and the beneficial owner of the interest, or of which both have with third parties, the amount of interest paid, taking into account the claim for which it is paid, exceeds that agreed to by the debtor and beneficial owner in the absence of such relations, the provisions of this article shall apply only to the latter amount. In such a case, the excess paid may be taxed in accordance with the tax laws of each Contracting State, taking into account the other provisions of this Convention.
Article 12. Royalties.
1. Fees from one of the Contracting States, the beneficial owner of which is a resident of the other Contracting State, may be taxed in that other State.
2. Such fees may be taxed in the Contracting State from which they come, and in accordance with the law of that State, but the tax thus required may not exceed 10 per 100 of its gross amount.
3. The term ‘royalties’ used in this Article means the amounts paid or credited, periodically or otherwise, and whatever their description or method of calculation, to the extent that they constitute consideration for:
(a) The use or right to use copyrights, patents, designs, plans, secret formulas or procedures, trademarks or other goods or similar rights;
(b) The use or right to use industrial, commercial or scientific equipment;
(c) The transfer of scientific, technical, industrial or commercial knowledge or information;
(d) Assistance benefits which are auxiliary and subordinate in respect of, and which are provided to permit the application or enjoyment of, the property or rights referred to in (a), equipment referred to in (b) or knowledge or information referred to in (c);
(e) The use or right to use:
(i) Films;
(ii) Films or tapes for use in connection with television; or
(iii) Tapes for use in connection with broadcasting; or
(f) The total or partial renunciation of the use or assignment of the property or rights referred to in this subparagraph.
4. The provisions of paragraph 2 shall not apply if the beneficial owner of the royalties, resident of one of the Contracting States, carries out in the other Contracting State from which the royalties come an industrial or commercial activity by means of a permanent establishment located in it or provides in that other State independent personal services through a fixed base there situated, and the goods or rights in respect of which the royalties are paid or credited are effectively linked to those permanent establishments or fixed base. In such cases, the provisions of Article 7 or Article 14 shall apply as appropriate.
5. The royalties are considered to come from a Contracting State where the debtor is the State itself, or one of its political subdivisions or local entities, or a resident of that State. However, where the debtor of the royalties, whether or not resident in one of the Contracting States, has a permanent establishment or a fixed basis in one of the Contracting States or outside the Contracting States in respect of which the obligation to pay the royalties has been entered into and such a permanent establishment or fixed base bears the burden of the fees, the fees shall be deemed to come from the State where the permanent establishment or fixed base is situated.
6. A person shall be deemed to be a resident of one of the Contracting States for the purposes of paragraph 5 if he has such consideration under the tax law of that State, irrespective of what may result from the application to that person of the provisions of paragraph 3 or paragraph 4, as appropriate, of Article 4.
7. Where, by reason of the special relations between the debtor and the beneficial owner of the royalties or of which both have with third parties, the amount of the fees paid or credited, having regard to the benefit for which they are paid or credited, exceeds that agreed to by the debtor and the beneficial owner in the absence of such relationships, the provisions of this article shall apply only to the latter amount. In such a case, the excess paid or credited may be taxed in accordance with the tax laws of each Contracting State, taking into account the other provisions of this Convention.
Article 13. Disposal of property.
1. Any income or gain that a resident of one of the Contracting States obtains from the disposal of the immovable property referred to in Article 6 and, as provided for in that article, situated in the other Contracting State, may be taxed in that other State.
2. Income or gain arising from the disposal of property other than immovable property referred to in Article 6 which is part of the asset of a permanent establishment held by an undertaking of one of the Contracting States in the other Contracting State, or which remains on a fixed basis that a resident of the said State first has in the other State for the provision of independent personal services, including income or profits derived from the disposal of that permanent establishment (only or with the enterprise as a whole) or from that fixed basis, may be taxed in that other State.
3. Income or profits arising from the disposal of ships or aircraft operated in international traffic, or property other than immovable property referred to in Article 6 affected by the operation of such vessels or aircraft, may be taxed only in the Contracting State of which the undertaking operating such vessels or aircraft is resident.
4. Income or profits obtained by a resident of one of the Contracting States from the disposal of shares or similar shares in a company whose assets consist, in whole or in particular, of immovable property referred to in Article 6 located in the other Contracting State, may be taxed in that other State.
5. Income or profits resulting from the disposal of shares or similar shares in a company other than those referred to in paragraph 4 of this Article, resident of one of the Contracting States, may be taxed in that Contracting State if the recipient of the income or profits has detained during the twelve-month period preceding such disposal, directly or indirectly, a share of at least 10 per 100 in the capital of that company.
6. The provisions of this Article shall not prevent the application of the laws of a Contracting State relating to the taxation of capital gains arising from the disposal of assets other than those referred to in the preceding paragraphs of this Article.
Article 14. Independent personal services.
1. Income obtained by a natural person resident in one of the Contracting States from the provision of professional services or other independent activities of a similar nature may be taxed only in that State, unless that natural person normally has a fixed basis in the other Contracting State for the conduct of his activities. If the natural person has such a fixed base, the income may be taxed in the other State, but only to the extent that it can be attributed to the activities carried out from that fixed base.
2. The term ‘professional services’ includes services provided in the exercise of independent scientific, literary, artistic, educational or pedagogical activities, as well as independent activities of doctors, lawyers, engineers, architects, dentists and accountants.
Article 15. Dependent personal services.
1. Without prejudice to the provisions of Articles 16, 18 and 19, salaries, salaries and similar remuneration obtained by a natural person resident in one of the Contracting States on account of employment may be subject to taxation only in that State, unless the employment is exercised in the other Contracting State. If the employment is exercised there, the remuneration derived from such an exercise may be subject to taxation in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration obtained by a natural person resident in one of the Contracting States on account of employment in the other Contracting State may be taxed only in the State referred to above if:
(a) The recipient does not remain in total in that other State, for one or more periods, more than one hundred and eighty-three days during the fiscal year of that other State;
(b) Remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) Remuneration is not deductible for the determination of the tax benefits of a permanent establishment or a fixed basis that the employer has in that other State.
3. Notwithstanding the preceding provisions of this article, remunerations earned by employment on board a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be subject to taxation in that State.
Article 16. Directors’ fees.
Participations, attendance allowances and other similar remunerations which a person resident of one of the Contracting States obtains as a member of the Board of Directors or a supervisory member of a company resident of the other Contracting State may be taxed in that other State.
Article 17. Pros at the show.
1. Notwithstanding the provisions of Articles 14 and 15, the income obtained by a professional of the spectacle (such as actors in theatre, cinema, radio or television, musicians and sportsmen) from the exercise of his personal activity in that capacity may be subject to taxation in the Contracting State in which such activities are carried out.
2. Where the income derived from the activities carried out by a professional of the spectacle personally and in that capacity is attributed, not to that professional of the spectacle, but to another person, such income may, notwithstanding the provisions of Articles 7, 14 and 15, be subject to taxation in the Contracting State in which the activities of the professional of the spectacle are carried out.
3. Notwithstanding the provisions of paragraphs 1 and 2, income obtained by a resident of one of the Contracting States from activities carried out as a performing professional in the other Contracting State shall be exempt from taxation in the other Contracting State if the visit thereto in connection with the pursuit of such activities is substantially financed by public funds of the State referred to first or of one of its political subdivisions or local entities.
Article 18. Pensions and annuities.
1. Without prejudice to the provisions of Article 19(2), pensions and annuities paid to a resident of one of the Contracting States may only be taxed in that State.
2. The term ‘annuality’ means a fixed amount paid periodically in pre-established terms, for life or for a specified or determinable period of time, by virtue of an obligation to make payments in compensation for an adequate benefit in money or subject to valuation in money.
3. Alimony or other maintenance payments from one of the Contracting States and paid to a resident of the other Contracting State may be subject to taxation only in the State mentioned in the first place.
Article 19. Government service.
1. Remuneration, excluding pensions or annuities, paid by one of the Contracting States or a political subdivision or local entity of that State to a natural person for services rendered in the exercise of public functions, may only be subject to taxation in that State. However, such regulations may only be imposed in the other Contracting State if the services are provided in that other State and the recipient is a resident of that other State who:
(a) possesses the citizenship or nationality of that State; or
(b) It has not acquired the resident status of that State solely for the purpose of providing the services.
2. (a) Pensions paid by a Contracting State or a political subdivision or local entity of that Contracting State, either directly or from constituted funds, to a natural person on account of services rendered to that State or subdivision or entity, may only be subject to taxation in that State.
(b) However, such pensions may be subject to taxation in the other Contracting State only if the natural person is a resident and possesses the citizenship or nationality of that State.
3. Notwithstanding the provisions of paragraphs 1 and 2, the provisions of Articles 15, 16 and 18 apply to remuneration and pensions paid for services rendered in the context of an industrial or commercial activity carried out by a Contracting State or one of its political subdivisions or local authorities.
Article 20. Students.
Where a student who is a resident of one of the Contracting States or has been so immediately before arriving in the other Contracting State and who remains temporarily in that other State for the sole purpose of continuing his studies, receives payments from sources outside that other State to cover his maintenance or teaching expenses, such payments shall be exempt from taxation in that other State.
Article 21. Incomes not expressly mentioned.
1. The income of a resident of one of the Contracting States not expressly mentioned in the previous articles of this Convention may be taxed only in that State.
2. However, income obtained by a resident of one of the Contracting States from sources located in the other Contracting State may also be taxed in that other State.
3. The provisions of paragraph 1 do not apply to income obtained by a resident of one of the Contracting States where such income is actually linked to a permanent establishment or a fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14 shall apply as appropriate.
Article 22. Source of income.
Income, profits or gains obtained by a resident of one of the Contracting States which, under one or more of Articles 6 to 8, 10 to 17 and 21, may be taxed in the other Contracting State, shall be treated as income from sources located in that other State for the purposes of Article 23 and the income taxation legislation of the respective Contracting States.
Article 23. Methods for elimination of double taxation.
1. Without prejudice to the provisions of Australian law in force at any time (provided that the general principle expressed in that legislation is not amended) concerning the recognition of claims or other reliefs in Australian tax for taxes paid outside Australia, the Spanish tax paid under Spanish law and in accordance with the provisions of this Convention, either directly or by withholding from the source, on income obtained by a person resident of Australia from sources located in Spain, shall be admitted as credit or give rise to a relief in the Australian tax accrual in respect of such income.
2. Where a person resident of Spain and not resident of Australia for the purposes of Australian taxation pays dividends to a Australian resident company which owns, directly or indirectly, at least 10 per cent of the voting shares of the company referred to first, the tax credit referred to in paragraph 1 shall include the Spanish tax paid by the company referred to first on that part of the profits corresponding to the dividends paid.
3. In the case of Spain, double taxation shall be avoided as follows:
(a) Where a resident of Spain obtains income or profits which under the provisions of this Agreement may be taxed in Australia, Spain shall grant:
(i) As a deduction from the income tax of that resident, an amount equal to the amount of income tax paid in Australia; and
(ii) In the case of dividends paid by a company resident in Australia to a company resident in Spain which holds directly at least 25 per cent of the capital of the company paying the dividends, the deduction shall include, in addition to the amount deductible under heading (i) of this subparagraph, that part of the tax actually paid by the company mentioned above on the profits from which the dividends are paid, in the amount corresponding to such dividends, provided that that amount is included, for this purpose, in the taxable base of the company receiving the dividends.
In any case, such deduction may not, however, exceed the part of the income or earnings tax, calculated prior to deduction, corresponding to the income or profits that may be taxed in Australia; and
(b) Where, under any provision of this Agreement, income or profits obtained by a resident of Spain are exempt from taxation in Spain, Spain may, however, take into account income or profits exempted for the purpose of determining the tax on the remaining income or earnings of that resident.
Article 24. Mutual agreement procedure.
1. Where a person resident of one of the Contracting States considers that the measures taken by the competent authorities of one or both Contracting States entail or may entail for him an imposition which is not in conformity with the provisions of this Convention, he may, irrespective of the remedies provided for by the domestic law of those States, submit his case to the competent authority of the Contracting State of which he is resident. The case shall be brought within three years of the first notification of the measure involving an imposition not in accordance with the provisions of the Convention.
2. The competent authority shall, if it finds the complaint well founded and if it is not in a position to adopt a satisfactory solution, make every effort to resolve the matter through an amicable agreement with the competent authority of the other Contracting State in order to avoid an imposition which does not comply with this Convention. The agreed solution shall apply notwithstanding the time limits provided for by the domestic law of the Contracting States.
3. The competent authorities of the Contracting States shall endeavour to resolve difficulties or to dispel doubts arising from the application of the Convention by mutual agreement.
4. The competent authorities of the Contracting States may communicate directly with each other in order to give effect to the provisions of this Convention.
Article 25. Exchange of information.
1. The competent authorities of the Contracting States shall exchange the information necessary to apply this Convention or the domestic legislation of the Contracting States relating to taxes covered by the Convention to the extent that the taxation required under the Convention is not contrary to the Convention. The exchange of information is not limited by Article 1. Information received by the competent authority of a Contracting State shall be kept secret in the same manner as information obtained under the domestic law of that State and shall be communicated only to the persons or authorities (including courts and administrative bodies) responsible for the management or collection of taxes covered by the Convention, the declaratory or executive procedures relating to such taxes or the resolution of appeals relating thereto, and shall be used only for those purposes.
2. In no case may the provisions of paragraph 1 be interpreted as obliging the competent authority of a Contracting State to:
(a) Take administrative measures contrary to its legislation or administrative practice or those of the other Contracting State;
(b) Provide information that cannot be obtained on the basis of its own legislation or in the exercise of its normal administrative practice or that of the other Contracting State;
(c) Provide information revealing a commercial, industrial or professional secret or a commercial procedure, or information whose communication is contrary to public policy.
Article 26. Diplomatic and consular officials.
The provisions of this Convention do not affect the tax privileges enjoyed by diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.
Article 27. Entry into force.
This Convention shall enter into force on the date on which Contracting States exchange notes through diplomatic channels, with mutual notification of compliance with the last of the requirements required for that purpose in Australia and Spain, and shall therefore take effect:
(a) In both Contracting States, in relation to the source taxation of income obtained by non-residents, in respect of income obtained from 1 January of the calendar year immediately following that in which the Convention enters into force;
(b) In Australia, in relation to another Australian tax, in respect of income from any tax period beginning on or after 1 July of the immediate calendar year following that in which the Convention enters into force;
(c) In Spain, in relation to other forms of income taxation, in respect of taxation relating to tax periods beginning on 1 January of the immediate calendar year following that in which the Convention enters into force.
Article 28. Termination.
This Convention shall remain in force indefinitely, but any Contracting State may notify in writing the denunciation of the Convention to the other Contracting State, through diplomatic channels, until 30 June of any calendar year commencing three years after the date of its entry into force and, in that case, the Convention shall cease to have effect:
(a) In both Contracting States, in relation to the source taxation of income obtained by non-residents, in respect of income obtained from 1 January of the immediate calendar year following that in which the complaint is notified:
(b) In Australia, in relation to another Australian tax, in respect of income from any tax period beginning on or after 1 July of the immediate calendar year following that in which the complaint is notified;
(c) In Spain, in relation to other forms of income taxation, with respect to taxation relating to tax periods beginning on 1 January of the immediate calendar year following that in which the complaint is notified.
In testimony to which the signatories, duly authorized to do so, have signed this Convention.
Done in double copy at Canberra on 24 March 1992, in the Spanish and English languages, both texts being equally authentic.
For the Kingdom of Spain,
For Australia,
JOSEL LUIS PEREZ,
JOHN SYNEY DAWKINS,
Ambassador
Minister of State for the Treasury.
[precept]Protocol to the Convention between the Kingdom of Spain and Australia to Prevent Double Taxation and Tax Evasion on Income Tax
The Kingdom of Spain and Australia, with reference to the Convention between the Kingdom of Spain and Australia on the avoidance of double taxation and the prevention of tax evasion in the area of income taxes, signed today (designated in this Protocol as ‘the Convention’), have agreed as follows:
If Australia subsequently concludes a Convention with a third State including an article on non-discrimination, Australia shall immediately inform the Kingdom of Spain in writing through diplomatic channels and shall enter into negotiations with it in order to provide for the same treatment for the Kingdom of Spain as that provided for that third State.
This Protocol shall form an integral part of the Convention.
In testimony of which the signatories, duly authorized to do so, have signed this Protocol.
Done in double copy at Canberra on 24 March 1992, in the Spanish and English languages, both texts being equally authentic.
For the Kingdom of Spain,
For Australia,
JOSEL LUIS PEREZ,
JOHN SYNEY DAWKINS,
Ambassador
Minister of State for the Treasury.
This Convention entered into force on 10 December 1992, the date of the exchange of notes, and the fulfilment of its constitutional requirements, as set out in Article 27 thereof, was communicated respectively.
What is made public for general knowledge.
[ignore]Madrid, December 15, 1992.–The Technical Secretary General, Aurelio Pérez Giralda.