Agreement for the avoidance of double taxation

Agreement between the Government of the Republic of Tajikistan and the Government of the Kingdom of Belgium for the avoidance of double taxation  and the  revention of fiscal evasion  with respect to taxes on income and on capital.

The Government of the Republic of Tajikistan and The Government of the Kingdom of Belgium, desiring to develop and to strengthen economic, scientific, technical and cultural cooperation between both States and to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows:

CHAPTER I. – SCOPE OF THE AGREEMENT

Article 1 

Persons covered

This Agreement shall apply to persons who are residents of one or both of the Contracting States.

Article 2

Taxes covered

1.     This Agreement shall apply to taxes on income and on capital imposed on behalf of a Contracting State or of its administrative-territorial units or local authorities, irrespective of the manner in which they are levied.

2.     There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

3.     The existing taxes to which the Agreement shall apply are in particular:

a)     in the Republic of Tajikistan:

(i)    surtax on individuals (tax on the income of individuals);

(ii)   the tax on the profit of legal persons;

(iii)  the tax on immovable property;

(iv)  the tax on the owners of means of transportation;

(hereinafter referred to as “Tajik tax”);

b)    in the case of Belgium:

(i)    the individual income tax;

(ii)   the  corporate income tax;

(iii)  the income tax on legal entities;

(iv)  the income tax on non-residents;

including the prepayments and the surcharges on these taxes and prepayments,

(hereinafter referred to as “Belgian tax”).

4.     The Agreement shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their taxation laws.

CHAPTER II. – DEFINITIONS

Article 3

General definitions

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

a)     the terms “a Contracting State” and “the other Contracting State” mean “Tajikistan” or “Belgium”, as the context requires;

b)    the term “Tajikistan” means the  Republic of Tajikistan and, when used in the geographical sense, includes its territory, inland waters and the air space above them  over which the Republic of Tajikistan may exercise its  sovereign rights and jurisdiction, including the rights on exploration of sub-soil  and natural resources, in accordance  with international law and where the laws   of the Republic of Tajikistan apply;

c)     the term “Belgium” means the Kingdom of Belgium; used in a geographical sense, it means the territory of the Kingdom of Belgium, including the territorial sea and any other area in the sea and in the air within which the Kingdom of Belgium, in accordance with international law, exercises sovereign rights or its jurisdiction;

d)    the term “person” includes an individual, a company and any other body of persons;

e)     the term “company” means any body corporate or any entity that is treated as a body corporate for tax purposes in the Contracting State of which it is a resident;

f)     the terms “enterprise of a Contracting State” and “enterprise of the other Contracting State” mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;

g)     the term “international traffic” means any transport by a ship, aircraft, road or railway vehicle operated by an enterprise of a Contracting State, except when the ship, aircraft, railway or road vehicle is operated solely between places in the other Contracting State;

h)    the term “competent authority” means:

(i)   in the case of Tajikistan, the Ministry of Finance or its authorised representative;

(ii)   in the case of Belgium, the Minister of Finance or his authorised representative;

i)     the term “national”, in relation to a Contracting State, means:

(i)    any individual possessing the nationality of that Contracting State;

(ii)   any legal person, partnership or association deriving its status as such from the laws in force in that Contracting State;

j)     the term “pension fund” means any person established in a Contracting State that is:

(i)    operated principally:

A)    to administer or provide retirement benefits; or

B)    to earn income on behalf of one or more persons operated to administer or provide retirement benefits;

(ii)   is either:

A)    in the case of Tajikistan, an entity organized under Tajik law and regulated by the Ministry of Labour and Social Protection of Population; or

B)    in the case of Belgium, an entity organized under Belgian law and regulated by the Banking, Finance and Insurance Commission.

2.     As regards the application of the Agreement at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.

Article 4

Resident

1.     For the purposes of this Agreement, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that State and any administrative-territorial  unit or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein.

2.     Where by reason of the provisions of paragraph 1 an individual is a resident of both Con­tracting States, then his status shall be determined as follows:

a)     he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests);

b)    if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode;

c)     if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national;

d)    if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

3.     Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.

Article 5

Permanent establishment

1.     For the purposes of this Agreement, the term “permanent establishment” means a fixed place of business through which the business of an enterprise is wholly or partly carried on.

2.     The term “permanent establishment” includes especially:

a)     a place of management;

b)    a branch;

c)     an office;

d)    a factory;

e)     a workshop, and

f)     a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.

3.     The term “permanent establishment” also includes:

a)     a building site or construction, installation or assembly project or on-site supervisory activities connected therewith, but only if such site, project or activities last more than 12 months;

b)    the rendering of services, including consultancy and managerial services, by an enterprise of a Contracting State through employees or other personnel engaged by the enterprise for such purposes, but only if such services continue in the territory of the other Contracting State for a period or periods  aggregating more than 6 months within any 12 month period.

4.     Notwithstanding the preceding provisions of this Article, the term “permanent establish­ment” shall be deemed not to include:

a)     the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;

b)    the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;

c)     the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;

d)    the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information for the enterprise;

e)     the maintenance of a fixed place of business solely for the purpose of  carrying on,  for the enterprise, any other activity of  a preparatory or auxiliary character;

f)     the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs a) to e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.

5.     Notwithstanding the provisions of paragraphs 1 and 2, where a person – other than an agent of an independent status to whom paragraph 6 applies – is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.

 

6.     An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.

 

7.     The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.

 

CHAPTER III. – TAXATION OF INCOME

Article 6

Income from immovable property

 

1.     Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.

 

2.     The term “immovable property” shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case in­clude property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships, aircraft, road and railway vehicles shall not be regarded as immovable property.

 

3.     The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.

 

4.     The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.

 

Article 7

Business profits

 

1.     The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent es­tablishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.

 

2.     Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly inde­pendently.

 

3.     In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.

 

4.     Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.

 

5.     No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.

 

6.     For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.

 

7.     Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.

 

Article 8

 International traffic

1.     Profits of an enterprise of a Contracting State from the operation of ships, aircraft, road or railway vehicles in international traffic shall be taxable only in that Contracting State.

2.     For  the purpose of this Article, profits from the operation of ships or aircraft in international traffic shall include in particular:

a)     profits from the leasing of ships or aircraft engaged in international  traffic on charter fully equipped, manned and supplied;

b)    profits from the leasing of ships or aircraft on a bare boat charter basis if such leasing activity is an ancillary activity for the enterprise engaged in international traffic;

c)     profits from the leasing of containers if such leasing activity is an ancillary activity  for the enterprise engaged in international traffic.

3.     The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.

 

Article 9

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