Commonwealth Numbered Acts Commonwealth Numbered ActsInternational Tax Agreements Act 1953
2 After section 11ZH
3 At the end of the Act
Schedule 44—Argentine agreement
the
Argentine agreement means the Agreement between the Government of Australia
and the Government of the Argentine Republic for the avoidance of double
taxation and the prevention of fiscal evasion with respect to taxes on income
and the protocol to that agreement, being the agreement and protocol a copy of
each of which in the English language is set out in Schedule 44.
THE GOVERNMENT OF
AUSTRALIA AND THE GOVERNMENT OF THE ARGENTINE REPUBLIC,
DESIRING to conclude
an Agreement for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income,
HAVE AGREED as follows:
This Agreement shall apply to persons who are residents of one
or both of the Contracting States.
1 The existing
taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects
relating to exploration for or exploitation of petroleum resources, imposed
under the federal law of Australia;
(b) in Argentina:
the income tax ( impuesto a las ganancias ).
2 This Agreement shall also
apply to any identical or substantially similar taxes which are imposed under
the law of the Argentine Republic or the federal law of Australia after the
date of signature of this Agreement in addition to, or in place of, the
existing taxes. The competent authorities of the Contracting States shall
notify each other of any substantial changes which have been made in the laws
of their respective States relating to the taxes to which this Agreement
applies within a reasonable period of time after those changes.
1 In this Agreement, unless the context otherwise
requires and in accordance with international law:
(a) the term "Argentina", when used in a geographical sense, includes:
(i) the maritime areas adjacent to the outer limit of the territorial sea,
to the extent to which the Argentine Republic possesses sovereignty
rights and jurisdiction, and
(ii) the continental shelf and exclusive economic zone of the Argentine
Republic only in relation to exploration and exploitation of natural
resources, and to tourism or recreation on off-shore installations;
(b) the term "Australia", when used in a geographical sense, excludes all
external territories other than:
(i) the Territory of Norfolk Island;
(ii) the Territory of Christmas Island;
(iii) the Territory of Cocos (Keeling) Islands;
(iv) the Territory of Ashmore and Cartier Islands;
(v) the Territory of Heard Island and McDonald Islands; and
(vi) the Coral Sea Islands Territory,
and includes:
(i) the 12 nautical mile territorial sea, and
(ii) the contiguous zone for purposes consistent with international law,
and
(iii) the continental shelf and exclusive economic zone of Australia but
only in relation to exploration for and exploitation of the living and
non-living natural resources, and in relation to tourism or recreation
on offshore installations;
(c) the term "Argentine tax" means tax imposed by Argentina, being tax to
which this Agreement applies by virtue of Article 2;
(d) the term "Australian tax" means tax imposed by Australia, being tax to
which this Agreement applies by virtue of Article 2;
(e) the term "company" means any body corporate or any entity which is
treated as a company or body corporate for tax purposes;
(f) the term "competent authority" means, in the case of Argentina, the
Ministry of Economy and Works and Public Services, Secretariat of
Finance ( el Ministerio de Economia y Obras y Servicios Publicos,
Secretaria de Hacienda ) and, in the case of Australia, the
Commissioner of Taxation or an authorised representative of the
Commissioner;
(g) the terms "a Contracting State" and "other Contracting State" mean
Argentina or Australia, as the context requires;
(h) the terms "enterprise of a Contracting State" and "enterprise of the
other Contracting State" mean an enterprise carried on by a resident
of Australia or an enterprise carried on by a resident of Argentina,
as the context requires;
(i) the term "international traffic" means any transport by a ship or
aircraft operated by an enterprise of a Contracting State, except when
the ship or aircraft is operated solely from a place or between places
in the other Contracting State;
(j) the term "person" includes an individual, a company and any other body
of persons;
(k) the term "tax" means Australian tax or Argentine tax, as the context
requires, but does not include any penalty or interest imposed under
the law of either Contracting State relating to its tax.
2 As regards
the application of this Agreement by a Contracting State at any time,
any term not defined in this Agreement shall, unless the context
otherwise requires, have the meaning which it has at that time under
the law of that State concerning the taxes to which this Agreement
applies.
1 For the purposes of this Agreement,
a person is a resident of one of the Contracting States if the person
is a resident of that State under the law of that State relating to
its tax.
2 A person is not a resident of a Contracting State for the
purposes of this Agreement if the person is liable to tax in that
State in respect only of income from sources in that State.
3 Where
by reason of the preceding provisions of this Article a person, being
an individual, is a resident of both Contracting States, then the
person shall be deemed to be a resident solely of the Contracting
State in which a permanent home is available to the person, or if a
permanent home is available to the person in both Contracting States,
or in neither of them, the person shall be deemed to be a resident
solely of the Contracting State with which the person's personal and
economic relations are closer.
4 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 solely of
the Contracting State in which its place of effective management is
situated.
1 For the purposes of
this Agreement, the term "permanent establishment", in relation to an
enterprise, means a fixed place of business through which the business
of the enterprise is wholly or partly carried on.
2 The term
"permanent establishment" includes:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to
the exploration for or the exploitation of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project
which exists for more than 6 months.
3 An enterprise shall not be
deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage or display of
goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the
enterprise solely for the purpose of storage or display; or
(c) the maintenance of a stock of goods or merchandise belonging to the
enterprise solely for the purpose of processing by another enterprise;
or
(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; or
(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.
4 An enterprise shall be deemed to have a
permanent establishment in a Contracting State and to carry on
business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 6
months in connection with a building site, or a construction,
installation or assembly project, which is being undertaken in that
State; or
(b) it performs services, including consultancy or managerial services, in
that Contracting State through employees or other personnel engaged by
the enterprise for such purpose, but only where such activities
continue in that State for the same project or a connected project for
a period or periods aggregating more than 183 days within any 12 month
period; or
(c) substantial equipment is being used in that State by, for or under
contract with the enterprise.
5 A person acting in a Contracting
State for an enterprise of the other Contracting State—other than
an agent of an independent status to whom paragraph 6
applies—shall be deemed to be a permanent establishment of that
enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority
to conclude contracts on behalf of the enterprise, unless the person's
activities are limited to the purchase of goods or merchandise for the
enterprise; or
(b) in so acting, the person manufactures or processes in that State for
the enterprise goods or merchandise belonging to the enterprise.
6 An
enterprise of a Contracting State shall not be deemed to have a
permanent establishment in the other Contracting State merely because
it carries on business in that other State through a person who is a
broker, general commission agent or any other agent of an independent
status and is acting in the ordinary course of the person's business
as such a broker or agent.
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 make either company a
permanent establishment of the other.
1 Income from real property may be taxed in the
Contracting State in which the real property is situated.
2 In this
Article, the term "real property", in relation to a Contracting State,
has the meaning which it has under the law of that State and includes:
(a) a lease of land and any other interest in or over land, whether
improved or not, including a right to explore for mineral, oil or gas
deposits or other natural resources, and a right to mine those
deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration
for or in respect of the exploitation of, or the right to explore for
or exploit, mineral, oil or gas deposits, quarries or other places of
extraction or exploitation of natural resources.
3 Any interest or
right referred to in paragraph 2 shall be regarded as situated where
the land, mineral, oil or gas deposits, quarries or natural resources,
as the case may be, are situated or where the exploration may take
place.
4 The provisions of paragraph 1 and paragraph 3 shall also
apply to income from real property of an enterprise and to income from
real property used for the performance of independent personal
services.
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 in that other State. If the
enterprise carries on business in that manner, the profits of the
enterprise may be taxed in the other State but only so much of them as
is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of a
similar kind as sold, or other business activities carried on in that
other State of the same or similar kind as those carried on, through
that permanent establishment, if it may reasonably be concluded that
those sales or business activities would not have been made or carried
on but for the existence of that permanent establishment or the
continued provision by it of goods or services.
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 in that other State, there shall in each
Contracting State be attributed to that permanent establishment the
profits which it might reasonably be expected to make if it were a
distinct and separate enterprise engaged in the same or similar
activities under the same or similar conditions and dealing wholly
independently with the enterprise of which it is a permanent
establishment or with other enterprises with which it deals.
3 In
determining the profits of a permanent establishment, there shall be
allowed as deductions expenses of the enterprise, being expenses which
are incurred for the purposes of the permanent establishment
(including executive and general administrative expenses so incurred)
and which would be deductible if the permanent establishment were an
independent entity which paid those expenses, whether incurred in the
Contracting State in which the permanent establishment is situated or
elsewhere.
4 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.
5 Nothing
in this Article shall affect the application of any law of a
Contracting State relating to the determination of the tax liability
of a person, including determinations in cases where the information
available to the competent authority of that State is inadequate to
determine the profits to be attributed to a permanent establishment,
provided that that law shall be applied, so far as it is practicable
to do so, consistently with the principles of this Article.
6 Where
profits include items of income or gains 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.
7 Nothing in this Article shall affect the operation of any
law of a Contracting State relating to tax imposed on profits derived
by an enterprise of the other Contracting State from insurance or
reinsurance provided that if the relevant law in force in either
Contracting State at the date of signature of this Agreement is varied
(otherwise than in minor respects so as not to affect its general
character) the Contracting States shall consult with each other with a
view to agreeing to any amendment of this paragraph that may be
appropriate.
8 Where:
(a) a resident of a Contracting State is beneficially entitled, whether
directly or through one or more interposed trust estates, to a share
of the business profits of an enterprise carried on in the other
Contracting State by the trustee of a trust estate other than a trust
estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with
the principles of Article 5, have a permanent establishment in that
other State,
the enterprise carried on by the trustee shall be deemed
to be a business carried on in the other State by that resident
through a permanent establishment situated in that other State and
that share of business profits shall be attributed to that permanent
establishment.
1 Profits of an
enterprise of a Contracting State derived from the operation of ships
or aircraft are taxable only in that State.
2 Notwithstanding the
provisions of paragraph 1, such profits may be taxed in the other
Contracting State to the extent that they are profits derived directly
or indirectly from ship or aircraft operations confined solely to
places in that other State.
3 The profits to which the provisions of
paragraph 1 and paragraph 2 apply include profits from the operation
of ships or aircraft derived through participation in a pool service
or other profit sharing arrangement.
4 Interest earned on funds held
in one of the Contracting States by a resident of the other
Contracting State in connection with the operation of ships or
aircraft, other than operations confined solely to places in the
firstmentioned State, and any other income incidental to such
operation, shall be treated as profits from the operation of ships or
aircraft.
5 For the purposes of this Article, profits derived from
the carriage by ships or aircraft of passengers, livestock, mail,
goods or merchandise which are shipped in a Contracting State and are
discharged at a place in that State shall be treated as profits from
ship or aircraft operations confined solely to places in that State.
1 Where:
(a) an enterprise of a Contracting State participates directly or
indirectly in the management, control or capital of an enterprise of
the other Contracting State; or
(b) the same persons participate directly or indirectly in the management,
control or capital of an enterprise of a Contracting State and an
enterprise of the other Contracting State,
and in either case
conditions operate between the two enterprises in their commercial or
financial relations which differ from those which might reasonably be
expected to operate between independent enterprises dealing wholly
independently with one another, then any profits which, but for those
conditions, might reasonably have been expected to accrue to one of
the enterprises but, by reason of those conditions, have not so
accrued, may be included in the profits of that enterprise and taxed
accordingly.
2 Nothing in this Article shall affect the application
of any law of a Contracting State relating to the determination of the
tax liability of a person, including determinations in cases where the
information available to the competent authority of that State is
inadequate to determine the profits which might reasonably be expected
to accrue to an enterprise, provided that that law shall be applied,
so far as it is practicable to do so, consistently with the principles
of this Article.
3 Where profits on which an enterprise of a
Contracting State has been charged to tax in that State are also
included, by virtue of the provisions of paragraph 1 or 2, in the
profits of an enterprise of the other Contracting State and charged to
tax in that other State, and the profits so included are profits which
might reasonably have been expected to have accrued to that enterprise
of the other State if the conditions operative between the enterprises
had been those which might reasonably have been expected to have
operated between independent enterprises dealing wholly independently
with one another, then the firstmentioned State shall make an
appropriate adjustment to the amount of tax charged on those profits
in the firstmentioned State. In determining such an adjustment, due
regard shall be had to the other provisions of this Agreement and for
this purpose the competent authorities of the Contracting States shall
if necessary consult each other.
1 Dividends
paid by a company which is a resident of a Contracting State for the
purposes of its tax, being dividends to which a resident of the other
Contracting State is beneficially entitled, may be taxed in that other
State.
2 However, those dividends may also be taxed in the
Contracting State of which the company paying the dividends is a
resident for the purposes of its tax, and according to the law of that
State, but the tax so charged shall not exceed:
(a) in Australia:
(i) 10 per cent of the gross amount of the dividends to the extent to
which the dividends have been "franked" in accordance with Australia's
law relating to tax, if the dividends are paid to a person which holds
directly at least 10 per cent of the voting power of the company
paying the dividends; and
(ii) 15 per cent of the gross amount of the dividends in all other cases;
and
(b) in Argentina:
(i) 10 per cent of the gross amount of the dividends if the dividends are
paid to a person which holds directly at least 25 per cent of the
capital of the company paying the dividends; and
(ii) 15 per cent of the gross amount of the dividends in all other cases;
provided that if the relevant law in either Contracting State at the
date of signature of this Agreement is varied, otherwise than in minor
respects so as to not affect its general character, the Contracting
States shall consult each other with a view to facilitating any
amendment of this paragraph as may be appropriate.
3 The term
"dividends" in this Article means income from shares, as well as other
amounts which are subjected to the same taxation treatment as income
from shares by the laws of the State of which the company making the
distribution is a resident for the purposes of its tax.
4 The
provisions of paragraph 2 shall not apply if the person beneficially
entitled to the dividends, being a resident of a Contracting State,
carries on business in the other Contracting State of which the
company paying the dividends is a resident, through a permanent
establishment situated in that other State, or performs in that other
State independent personal services from a fixed base situated in that
other State, and the holding in respect of which the dividends are
paid is effectively connected with that permanent establishment or
fixed base. In that case the provisions of Article 7 or Article 14, as
the case may be, shall apply.
5 Where a company which is a resident
of a Contracting State derives profits or income from the other
Contracting State, that other State may not impose any tax on the
dividends paid by the company—being dividends to which a person
who is not a resident of the other Contracting State is beneficially
entitled—except insofar as the holding in respect of which such
dividends are paid is effectively connected with a permanent
establishment or a fixed base situated in that other State, even if
the dividends paid consist wholly or partly of profits or income
arising in such other State. This paragraph shall not apply in
relation to dividends paid by a company which is a resident of
Australia for the purposes of Australian tax and which is also a
resident of Argentina for the purposes of Argentine tax.
1 Interest arising in a Contracting State, being interest to
which a resident of the other Contracting State is beneficially
entitled, may be taxed in that other State.
2 However, that interest
may also be taxed in the Contracting State in which it arises, and
according to the law of that State, but the tax so charged shall not
exceed 12 per cent of the gross amount of the interest.
3
Notwithstanding the provisions of paragraph 2, interest derived from
the investment in a Contracting State of official reserve assets by
the government of the other Contracting State, a government monetary
institution or a bank performing central banking functions in that
other State shall be exempt from tax in the firstmentioned State.
4
The term "interest" in this Article includes interest from government
securities or from bonds or debentures, whether or not secured by
mortgage and whether or not carrying a right to participate in
profits, interest from any other form of indebtedness and all other
income assimilated to income from money lent by the law, relating to
tax, of the Contracting State in which the income arises. However, the
term "interest" does not include income dealt with in Article 8 or in
Article 10.
5 The provisions of paragraph 2 shall not apply if the
person beneficially entitled to the interest, being a resident of a
Contracting State, carries on business in the other Contracting State,
in which the interest arises, through a permanent establishment
situated in that other State, or performs in that other State
independent personal services from a fixed base situated in that other
State, and the indebtedness in respect of which the interest is paid
is effectively connected with that permanent establishment or fixed
base. In that case the provisions of Article 7 or Article 14, as the
case may be, shall apply.
6 Interest shall be deemed to arise in a
Contracting State when the payer is that State itself or a political
subdivision or local authority of that State or a person who is a
resident of that State for the purposes of its tax. Where, however,
the person paying the interest, whether the person is a resident of a
Contracting State or not, has in a Contracting State or outside both
Contracting States a permanent establishment or fixed base in
connection with which the indebtedness on which the interest is paid
was incurred, and that interest is borne by that permanent
establishment or fixed base, then the interest shall be deemed to
arise in the State in which the permanent establishment or fixed base
is situated.
7 Where, by reason of a special relationship between the
payer and the person beneficially entitled to the interest, or between
both of them and some other person, the amount of the interest paid,
having regard to the indebtedness for which it is paid, exceeds the
amount which might reasonably have been expected to have been agreed
upon by the payer and the person so entitled in the absence of that
relationship, the provisions of this Article shall apply only to the
lastmentioned amount. In that case the excess part of the amount of
the interest paid shall remain taxable according to the law of each
Contracting State, due regard being had to the other provisions of
this Agreement.
1 Royalties arising in a
Contracting State, being royalties to which a resident of the other
Contracting State is beneficially entitled, may be taxed in that other
State.
2 Those royalties may also be taxed in the Contracting State
in which they arise, and according to the law of that State, but the
tax so charged shall not exceed:
(a) 10 per cent of the gross amount of the royalties in the case of
payments or credits referred to in:
(i) subparagraph 3(a), provided that this subparagraph 2(a) applies only
in relation to copyright of literary, dramatic, musical or other
artistic work;
(ii) subparagraphs 3(b)-(d); and
(iii) subparagraph 3(j) that relate to any payment or credit referred to in
subparagraphs 2(a)(i) or (ii);
(b) 10 per cent of the net amount of the royalties in the case of payments
or credits referred to in subparagraph 3(e). For the purposes of this
subparagraph 2(b), the net amount of a royalty refers to the amount of
payments or credits remaining after the deduction of the expenses
directly related to the rendering of the technical assistance and the
costs and expenses of any equipment or material supplied by the
provider of the assistance and for the specific purpose of rendering
such assistance; and
(c) 15 per cent of the gross amount of the royalties in all other cases,
including all copyright other than that referred to in subparagraph
2(a)(i).
3 The term "royalties" in this Article means payments or
credits, whether periodical or not, and however described or computed,
to the extent to which they are made as consideration for:
(a) the use of, or the right to use, any copyright, patent, design or
model, plan, secret formula or process or other intangible property,
trademark or other like property or right; or
(b) the use of, or the right to use, any industrial or scientific
equipment; or
(c) the supply of scientific, technical, or industrial, knowledge or
information; or
(d) the supply of any assistance that is ancillary and subsidiary to, and
is furnished as a means of enabling the application or enjoyment of,
any such property or right as is mentioned in subparagraph (a), any
such equipment as is mentioned in subparagraph (b) or any such
knowledge or information as is mentioned in subparagraph (c); or
(e) the rendering of any technical assistance not included in subparagraph
3(d); or
(f) the reception of, or the right to receive, visual images or sounds, or
both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use in connection with television broadcasting or radio
broadcasting, or the right to use in connection with television
broadcasting or radio broadcasting, visual images or sounds, or both,
or other means of reproduction for use in connection with television
broadcasting or radio broadcasting, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(h) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(i) the use of, or the right to use, any commercial equipment, and the
supply of commercial knowledge or information; or
(j) total or partial forbearance in respect of the use or supply of any
property or right referred to in this paragraph.
4 The provisions of
paragraph 2 shall not apply if the person beneficially entitled to the
royalties, being a resident of a Contracting State, carries on
business in the other Contracting State, in which the royalties arise,
through a permanent establishment situated in that other State, or
performs in that other State independent personal services from a
fixed base situated in that other State, and the property or right in
respect of which the royalties are paid or credited is effectively
connected with that permanent establishment or fixed base. In that
case the provisions of Article 7 or Article 14, as the case may be,
shall apply.
5 Royalties shall be deemed to arise in a Contracting
State when the payer is that State itself or a political subdivision
or local authority of that State or a person who is a resident of that
State for the purposes of its tax. Where, however, the person paying
the royalties, whether the person is a resident of a Contracting State
or not, has in a Contracting State or outside both Contracting States
a permanent establishment or fixed base in connection with which the
liability to pay the royalties was incurred, and the royalties are
borne by the permanent establishment or fixed base, then the royalties
shall be deemed to arise in the State in which the permanent
establishment or fixed base is situated.
6 Where, by reason of a
special relationship between the payer and the person beneficially
entitled to the royalties, or between both of them and some other
person, the amount of the royalties paid or credited, having regard to
what they are paid or credited for, exceeds the amount which might
reasonably have been expected to have been agreed upon by the payer
and the person so entitled in the absence of such relationship, the
provisions of this Article shall apply only to the lastmentioned
amount. In that case the excess part of the amount of the royalties
paid or credited shall remain taxable according to the law of each
Contracting State, due regard being had to the other provisions of
this Agreement.
1 Income, profits
or gains derived by a resident of a Contracting State from the
alienation of real property situated in the other Contracting State
may be taxed in that other State.
2 Income, profits or gains derived
by a resident of a Contracting State from the alienation of any shares
or other interests in a company, or of an interest of any kind in a
partnership or trust or other entity, where the value of the assets of
that company, partnership, trust, or other entity, whether they are
held directly or indirectly (including through one or more interposed
entities, such as, for example, through a chain of companies), is
principally attributable to real property situated in the other
Contracting State, may be taxed in that other State.
3 Income,
profits or gains from the alienation of property, other than real
property, that forms part of the business property of a permanent
establishment which an enterprise of a Contracting State has in the
other Contracting State or pertains to a fixed base available in that
other State to a resident of the firstmentioned State for the purpose
of performing independent personal services, including income, profits
or gains from the alienation of that permanent establishment (alone or
with the whole enterprise) or of that fixed base, may be taxed in that
other State.
4 Income, profits or gains from the alienation of ships
or aircraft operated in international traffic, or of property (other
than real property) pertaining to the operation of those ships or
aircraft by an enterprise of a Contracting State, shall be taxable
only in that State.
5 Nothing in this Agreement affects the
application of a law of a Contracting State relating to the taxation
of gains of a capital nature derived from the alienation of any
property other than that to which any of the preceding paragraphs of
this Article apply.
6 In this Article, the term "real property" has
the same meaning as it has in Article 6.
7 The situation of real
property shall be determined for the purposes of this Article in
accordance with paragraph 3 of Article 6.
1 Income derived by an individual who is a resident
of a Contracting State in respect of professional services or other
activities of an independent character shall be taxable only in that
State but such income may also be taxed in the other Contracting State
if the individual:
(a) has a fixed base regularly available in the other Contracting State
for the purpose of performing the individual's activities. If such a
fixed base is available to the individual, the income may be taxed in
the other State but only so much of the income as is attributable to
that fixed base; or
(b) is present in the other State for a period or periods exceeding in the
aggregate 183 days in any 12 month period commencing or ending in the
fiscal period or year of income concerned. If the individual is so
present only so much of the income as is attributable to the
activities performed in the other State may be taxed in that State.
2
The term "professional services" includes services performed in the
exercise of independent scientific, literary, artistic, educational or
teaching activities as well as in the exercise of the independent
activities of physicians, lawyers, engineers, architects, dentists and
accountants.
1 Subject to
the provisions of Articles 16, 18, 19, 20 and 21, salaries, wages and
other similar remuneration derived by an individual who is a resident
of a Contracting State in respect of an employment shall be taxable
only in that State unless the employment is exercised in the other
Contracting State. If the employment is so exercised, such
remuneration as is derived from that exercise may be taxed in that
other State.
2 Notwithstanding the provisions of paragraph 1,
remuneration derived by an individual who is a resident of a
Contracting State in respect of an employment exercised in the other
Contracting State shall be taxable only in the firstmentioned State
if:
(a) the recipient is present in the other State for a period or periods
not exceeding in the aggregate 183 days in any 12 month period
commencing or ending in the fiscal period or year of income concerned,
as the case may be; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a
resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a
permanent establishment or a fixed base which the employer has in that
other State.
3 Notwithstanding the preceding provisions of this
Article, remuneration derived in respect of an employment exercised
aboard a ship or aircraft operated in international traffic by an
enterprise of a Contracting State may be taxed in that State.
Directors' fees and similar payments derived by a
resident of a Contracting State in that person's capacity as a member
of the board of directors of a company which is a resident of the
other Contracting State may be taxed in that other State.
1 Notwithstanding the provisions of Articles 14 and 15,
income derived by an entertainer who is a resident of a Contracting
State (such as theatrical, motion picture, radio or television
artistes and musicians and sportspersons) from the entertainer's
personal activities as such may be taxed in the Contracting State in
which these activities are exercised.
2 Where income in respect of
the personal activities of an entertainer as such accrues not to that
entertainer but to another person, that income may, notwithstanding
the provisions of Articles 7, 14 and 15, be taxed in the Contracting
State in which the activities of the entertainer are exercised.
3 The
provisions of paragraphs 1 and 2 shall not apply to income derived
from activities performed in a Contracting State by an entertainer who
is a resident of the other Contracting State if the visit to the
firstmentioned State is wholly or mainly supported by public funds of
the other Contracting State, its political subdivisions or local
authorities. In such a case, the income is taxable only in the
Contracting State in which the entertainer is resident.
1 Pensions (including government pensions) and
annuities paid to a resident of a Contracting State shall be taxable
only in that State.
2 The term "annuity" means a stated sum payable
periodically at stated times during life or during a specified or
ascertainable period of time under an obligation to make the payments
in return for adequate and full consideration in money or money's
worth.
3 Any alimony or other maintenance payment arising in a
Contracting State and paid to a resident of the other Contracting
State shall be taxable only in the firstmentioned State.
1 Salaries, wages and other similar remuneration,
other than a pension or annuity, paid by a Contracting State or a
political subdivision or local authority of that State to any
individual in respect of services rendered in the discharge of
governmental functions shall be taxable only in that State. However,
such salaries, wages and other similar remuneration shall be taxable
only in the other Contracting State if the services are rendered in
that other State and the recipient is a resident of that other State
who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of
rendering the services.
2 The provisions of paragraph 1 shall not
apply to salaries, wages and other similar remuneration in respect of
services rendered in connection with any trade or business carried on
by a Contracting State or a political subdivision or local authority
of that State. In that case the provisions of Article 15 or Article
16, as the case may be, shall apply.
1 Where a professor or teacher who is a resident of a
Contracting State visits the other Contracting State for a period not
exceeding 2 years for the purpose of teaching or carrying out advanced
study or research at a university, college, school or other
educational institution wholly or mainly supported by public funds in
that other State, any remuneration the person receives for such
teaching, advanced study or research shall be exempt from tax in that
other State to the extent to which that remuneration is, or upon the
application of this Article will be, subject to tax in the
firstmentioned State.
2 This Article shall not apply to remuneration
which a professor or teacher receives for conducting research if the
research is undertaken primarily for the private benefit of a specific
person or specific persons.
Where a student,
who is a resident of a Contracting State or who was a resident of that
State immediately before visiting the other Contracting State and who
is temporarily present in that other State solely for the purpose of
the student's education, receives payments from sources outside that
other State for the purpose of the student's maintenance or education,
those payments shall be exempt from tax in that other State.
1 Items of income of a resident of a Contracting
State, wherever arising, not dealt with in the foregoing Articles of
this Agreement shall be taxable only in that State.
2 However, any
such income derived by a resident of a Contracting State from sources
in the other Contracting State may also be taxed in that other State.
3 The provisions of paragraph 1 shall not apply to income, other than
income from real property as defined in paragraph 2 of Article 6,
derived by a resident of a Contracting State where that income is
effectively connected with a permanent establishment or fixed base
situated in the other Contracting State. In that case the provisions
of Article 7 or Article 14, as the case may be, shall apply.
1 Income, profits or gains derived by a resident
of a Contracting State which, under any one or more of Articles 6 to 8
and 10 to 19, may be taxed in the other Contracting State shall for
the purposes of the law of that other Contracting State relating to
its tax be deemed to be income from sources in that other Contracting
State.
2 Income, profits or gains derived by a resident of a
Contracting State which, under any one or more of Articles 6 to 8 and
10 to 19, may be taxed in the other Contracting State shall for the
purposes of Article 24 and of the law of the firstmentioned
Contracting State relating to its tax be deemed to be income from
sources in the other Contracting State.
1 In Australia:
Subject to the
provisions of the law of Australia from time to time in force which
relate to the allowance of a credit against Australian tax of tax paid
in a country outside Australia (which shall not affect the general
principle of this Article), Argentine tax paid under the law of
Argentina and in accordance with this Agreement, whether directly or
by deduction, in respect of income derived by a person who is a
resident of Australia from sources in Argentina shall be allowed as a
credit against Australian tax payable in respect of that income.
2 In
Argentina:
Where a resident of Argentina derives income which, in
accordance with the provisions of this Agreement, may be taxed in
Australia, Argentina shall allow as a deduction from the tax on the
income of that resident an amount equal to the income tax paid in
Australia.
Such deduction shall not, however, exceed that part of the
income tax as computed before the deduction is given, which is
attributable to the income which may be taxed in Australia.
3 Where
under this Agreement income is relieved from tax in a Contracting
State and, under the law in force in the other Contracting State, a
person, in respect of that income, is subject to tax by reference to
that part of the income which is remitted to or received in that other
State and not by reference to its full amount, the relief allowed
under this Agreement in the firstmentioned State shall apply only to
so much of the income as is remitted to or received in, and is subject
to tax in, the other State.
4 For the purposes of paragraph 1, tax
payable in Argentina by a company which is a resident of Australia in
respect of profits attributable to manufacturing activities or to the
exploration for or exploitation of natural resources carried on by it
in Argentina shall be deemed to include any amount which would have
been payable as Argentine tax for any tax year but for an exemption
from, or reduction of, tax granted for that year or any part thereof
under specific provisions of Argentine legislation that the Treasurer
of Australia and the Minister of Economy and Works and Public Services
of Argentina in letters exchanged for this purpose agree should be
covered by this paragraph 4. Subject to its terms, such an agreement
on applicable provisions shall be valid for as long as those
provisions are not modified after the date of that agreement or have
been modified only in minor respects so as not to affect their general
character. The period for which that agreement is to apply is to be
agreed in those letters.
1
Where a person considers that the actions of one or both of the
Contracting States result or will result for the person in taxation
not in accordance with this Agreement, the person may, irrespective of
the remedies provided by the domestic law of those States concerning
taxes to which this Agreement applies, present a case to the competent
authority of the Contracting State of which the person is a resident.
The case must be presented within 3 years from the first notification
of the action resulting in taxation not in accordance with this
Agreement.
2 The competent authority shall endeavour, if the claim
appears to it to be justified and if it is not itself able to arrive
at a satisfactory solution, to resolve the case with the competent
authority of the other Contracting State, with a view to the avoidance
of taxation which is not in accordance with this Agreement. The
solution so reached shall be implemented notwithstanding any time
limits in the domestic law of the Contracting States.
3 The competent
authorities of the Contracting States shall jointly endeavour to
resolve any difficulties or doubts arising as to the interpretation or
application of this Agreement. They may also consult together for the
elimination of double taxation in cases not provided for in this
Agreement.
4 The competent authorities of the Contracting States may
communicate with each other directly for the purpose of giving effect
to the provisions of this Agreement.
1 The competent authorities of the Contracting States
shall exchange such information as is necessary for carrying out the
provisions of this Agreement or of the domestic laws of the
Contracting States concerning taxes to which this Agreement applies
insofar as the taxation under those laws is not contrary to this
Agreement. The exchange of information is not restricted by Article 1.
Any information received by a Contracting State shall be treated as
secret in the same manner as information obtained under the domestic
laws of that State and shall be disclosed only to persons or
authorities (including courts and administrative bodies) concerned
with the assessment or collection of, the enforcement or prosecution
in respect of, or the determination of appeals in relation to, the
taxes to which this Agreement applies. Such persons or authorities
shall use the information only for such purposes. They may disclose
the information in public court proceedings or in judicial decisions.
2 In no case shall the provisions of paragraph 1 be construed so as to
impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law or the
administrative practice of that or of the other Contracting State; or
(b) to supply information which is not obtainable under the law or in the
normal course of the administration of that or of the other
Contracting State; or
(c) to supply information which would disclose any trade, business,
industrial, commercial or professional secret or trade process, or to
supply information the disclosure of which would be contrary to public
policy.
Nothing in this Agreement shall affect the fiscal privileges of
members of diplomatic missions and consular posts under the general
rules of international law or under the provisions of special
international agreements.
Both
Contracting States shall notify each other in writing of the
completion of their respective statutory and constitutional procedures
required for the entry into force of this Agreement. This Agreement
shall enter into force on the date of the last notification, and
thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a
nonresident, in relation to income derived on or after 1 January in
the calendar year next following that in which the Agreement enters
into force;
(ii) in respect of other Australian tax, in relation to income, profits or
gains of any year of income beginning on or after 1 July in the
calendar year next following that in which the Agreement enters into
force;
(iii) in respect of income, profits or gains from the operation of aircraft
to which Article 8 or paragraph 4 of Article 13 of this Agreement
applies, in relation to tax on such income, profits or gains of any
year of income beginning on or after 27 September 1988;
(b) in Argentina:
(i) in respect of taxes withheld at source, on income derived on or after
1 January in the calendar year next following that in which the
Agreement enters into force;
(ii) in respect of other Argentine tax, in relation to tax chargeable for
any tax year beginning on or after 1 January in the calendar year next
following that in which the Agreement enters into force;
(iii) in respect of income, profits or gains from the operation of aircraft
to which Article 8 or paragraph 4 of Article 13 of this Agreement
applies, in relation to tax on such income, profits or gains of any
year of income beginning on or after 27 September 1988.
This Agreement shall continue in effect indefinitely, but
either of the Contracting States may, on or before 30 June in any
calendar year beginning after the expiration of 5 years from the date
of its entry into force, give to the other Contracting State through
the diplomatic channel written notice of termination and, in that
event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a
nonresident, in relation to income derived on or after 1 January in
the calendar year next following that in which the notice of
termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or
gains of any year of income beginning on or after 1 July in the
calendar year next following that in which the notice of termination
is given;
(b) in Argentina:
(i) in respect of taxes withheld at source, in relation to amounts derived
on or after 1 January in the calendar year next following that in
which the notice of termination is given;
(ii) in respect of other Argentine tax, in relation to tax chargeable for
any taxable year beginning on or after 1 January in the calendar year
next following that in which the notice of termination is given.
IN
WITNESS WHEREOF the undersigned, duly authorised thereto by their
respective Governments, have signed this Agreement.
DONE at Buenos
Aires, this twenty-seventh day of August, 1999, in duplicate in the
English and Spanish languages, both texts being equally authentic.
FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF
AUSTRALIA: THE ARGENTINE
REPUBLIC:
MARK VAILE ANDRES CISNEROS
[Signatures omitted]
[ Minister's second reading speech made
in—
House of Representatives on 23 September 1999
Senate on 18
October 1999 ]
(183/99)