稅收協(xié)定之工資薪金incomefromemploymentetc

1、2014/5/712014/5/7Chap.3 Allocatio n rulesLaw of Double Taxation Conventions中央財(cái)經(jīng)大學(xué)張京萍2014/5/73. 1 in come from immovable property3. 2 bus in ess profits3. 3 in ter nati onal tran sport3. 4 divide nds3. 5 in terest3. 6 royalties3. 7 capital gains3. 8 in depe ndent pers onal service3. 9 in come from em

2、ployme nt3. 10 directors fee3. 11 artistes and sportsme n3. 12 pensions3. 13 gover nment service3. 14 stude nts3. 15 other in come3. 16 capital2014/5/72Chap.3 Allocati on rulesStructure of a treatyPers onal and substa ntive scopeAllocatio n RulesMethod Article Exempti on method Credit methodTaxation

3、 of IncomeArt. 6 immovable propertyArt. 7 business profitsArt. 8 international transportArt. 10 dividendsArt. 11 interestArt. 12 royaltiesArtt 1133capitat gains iArt. 14 independent personal serviceArt. 15 employmentArt. 16 Director' s feesArt. 17 artistes and sportsmenArt. 18 pensionsArt. 19 go

4、vernment serviceArt. 21 other incomeTaxation of CapitalArt. 22 capitalIn depe ndent pers onal serviceArt.7 OECD MCArt.14 UN MC2014/5/72014/5/7#2014/5/722014/5/7Art.14 Independent personal serviceIn come from employme nt(UN MC )1. Income derived by a resident of a Contracting State in respect of prof

5、essional services or other activities of an independent character shall be taxable only in that State except in the following circumstances, when such income may also be taxed in the other Contracting State:(a) If he has a fixed base regularly available to him in the other Contracting State for the

6、purpose of performing his activities; in that case, only so much of the income_as_is_ attributable tottlnahaxeikease)fflHay mataxled baxeat dtheh CoothertirCcSitatetiog State; orArt.15 OECD MC(b) If his stay in the other Contracting State is for a period or periods amounting to or exceeding in the a

7、ggregate 183 days in any twelvemonth period commencing or ending in the fiscal year concerned; in that case, only so much of the income as is derived from his activities performed in that other State may be taxed in that other State.2. The term “ professional services” includes especially independen

8、t scientific, literary,artistic, educational or teaching activities as well as the independent activities ofphysicians, lawyers, engineers, architects, dentists and accountants.#2014/5/7#2014/5/72014/5/752014/5/76#2014/5/7#2014/5/7Art.15 In come from employme ntArt.16, 17, 18 and 19 take precedenceD

9、istinction between business income (Art.14) and income from employmentArt.15 (11):OOlyyaXGaXaeiin reshEteitisnstatestattessrlfees the employment is exercised in the other stateIn gen eral taxati on in the State of reside neeTaxati on in the State of source in the employme nt is exersiced there? Plac

10、e of Work PrincipleArt.15 In come from employme ntException to the principle of place of workArt.15 (2): 183-day-clause? Taxation in the State of Residence if all three conditions are meta) presence ofohthenemoyoedoedoest exceedcteedda days within one twelve months periodeb) AND the remun erati on i

11、s paid by the employer who is not a reside nt of the other state (Source State)AND the remun erati on is not borne by a PE which the employer has in the other state (Source State)2014/5/7112014/5/71232014/5/72014/5/7112014/5/712#2014/5/72014/5/772014/5/782014/5/7112014/5/712#2014/5/72014/5/7112014/5

12、/712#2014/5/7Art.15 In come from employme ntArt.15 In come from employme nt2014/5/7112014/5/712#2014/5/72014/5/7112014/5/712#2014/5/72014/5/79A爲(wèi)B(tài)K> 梯X Co.Case: 1(183-day clause )Mr. Smith, resident in State A, works in State B for his employer (X-Corp, resident in State A) from July 5th X1 until

13、June 25th X2.2014/5/710Art.15 (3): special rule for pilots and stewardesses? Taxati on in the Con tract ing State in which the place of effective man ageme ntof the en terprise is locatedRule on fifanteiwwtakersi iimdividiuadiTreaTesaties? Taxation in the State of Residence2014/5/7112014/5/712#2014/

14、5/72014/5/7112014/5/712#2014/5/7Art.15 In come from employme ntSoluti on:Treaty betwee n A and B:Art.1 icw Art 4: Mr. Smith resident in State AArt.2: iriiddVidaal neomltaxtaxArt.15 (1): principle of place of work; State B as well as State A have a taxing rightArt.15 (2): 183-day rulea) less tha n 18

15、3 day? NOArt.15 (1): applicableArt.23: to avoid double taxati onArt.15 In come from employme ntCase: 2(183-day clause )Mr. Smith, resident in State A, works in State B for his employer (X-Corp, resident in State C) from July 5th X1 until September 25th X1. Therefore, Mr. Smith gets a remuneration of

16、 100.2014/5/7112014/5/712#2014/5/7Art.15 In come from employme ntSolution:Treaty between A and B:Art. 1 icw Art 4: Mr. Smith reside nt in State AArt. 2: in dividual in come taxArt. 15 (1) prin ciple of place of work; State B as well asState AAhhavea feaXuXngghrtghtArt. 15 183-day rulea) less tha n 1

17、83 day? YESb) Employer is not in the other Con tract ing State?YES (reside ntin C; Con tracti ng State is no requireme nt for the employer)c) Employer has no PE in the other Con tract ing State?YESArt. 15 applicable? only taxable in State A (State of Residence)Art.15 In come from employme ntSolution

18、:Treaty between A and C:Art. 1 icw Art 4: Mr. Smith resident in State AArt. 2: individual income taxArt. 15 (1) principle of place of work NOT exercised in State COnly taxable in State A (State of Residence)2014/5/7172014/5/71842014/5/72014/5/7172014/5/718#2014/5/72014/5/7132014/5/7142014/5/7172014/

19、5/718#2014/5/72014/5/7172014/5/718#2014/5/7Art.15 In come from employme ntAttached Art.15 In come from employme nt2014/5/7172014/5/718#2014/5/72014/5/7172014/5/718#2014/5/7Case: 3(Short term assignment )Mr.Smith (resident in State A) is an employee of A-Co (resident in State A). B-Co operates a hote

20、l in State B.Mr. Smith is send to work 5 months at B-Co in State B. Therefore BELtccpoysya rBamagagenefde tfeA-GoAMCo Mr Smith stays employed with A-Co, however, Mr. Smith is instructed solely by B-Co.Q: Who is the employer of Mr.SmithFormal or econ omic approach1. Subject to the provisions of Artic

21、les 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is

22、 derived therefrom may be taxed in that other State.2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable ootyyn ignetfestfirst-meegiO(ngeld StStete： if:a) the

23、recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned, andb) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, andc) the re

24、muneration is not borne by a permanent establishment which the employer has in the other State.Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic, or aboard a boat engaged in

25、 inland waterways transport, may be taxed in the Contracting State in which the place of effective management of the enterprise is situated.2014/5/7172014/5/718#2014/5/72014/5/7172014/5/718#2014/5/72014/5/7152014/5/7162014/5/7172014/5/718#2014/5/72014/5/7172014/5/718#2014/5/7Art.16 Director ' s

26、feesDirector ' s feesDirector s fees may be taxed in that contractingState in which the company is residentShared allocation of taxing rightsArt.16 OECD MC2014/5/7172014/5/71852014/5/7Art.16 Director's feesCase 1: Paul Frank is a resident of State A. He is the 30 % shareholder in a company t

27、hat is a resident of State B. He is at the same time the only managing director of this corporation and receives remuneration in this capacity. He has concluded an employment contract with the company hbewwtaksoifoHeHnloralymHsrteiSt&ieSt&teicB once a month to fulfil his management function.

28、Art.16 Director ' s feesSolution:Treaty between A and B:Art.1 icw Art.4: Mr Frank is resident in AArt.2: individual income taxArt.15:, Art 16 takes precendenceArt.16:company resident in the other ContractingState?Art. 4 (3): Place of effective man ageme ntPOEM in State B Art.16 applicabelArt.23

29、method: to avoid double taxation62014/5/7#2014/5/72014/5/7192014/5/720#2014/5/7#2014/5/7Aritistes and SportsmenAttached:Art.16 Director ' s feesDirectors ' fees and other similar payme nts derived by a reside nt of a Con tract ing State in his capacity as a member of the board of directors o

30、f a compa ny which is a reside nt of the other Con tracti ng State may be taxed in that other State.Art.17 OECD MC#2014/5/7#2014/5/72014/5/7212014/5/722#2014/5/7#2014/5/7Art.17 Aritistes and SportsmenArt.17 (1): shared allocation of taxing rights Artistes/entertainer: persons appearing or reciting i

31、n public (Painters, Sculptors, Authors are not artistes) Sportsmen: interpreted in a broader sense, also Golfer, Chess or BBdge PlPyersArt.17 (2):a look-through approach ”Art.17 is also applicable if the remuneration is not paid directly to the artist or sportsmanArt.17 Aritistes andSportsme nCase 1

32、: Mr. A (resident in State A) is a tennis player and participates in a tournament in States B. He received a premium for the paricipation and the premium for winning the tournament.#2014/5/7#2014/5/72014/5/7232014/5/724#2014/5/72014/5/7352014/5/736#2014/5/7Art.17 Aritistes andSportsme nSolution:Trea

33、ty between A and B:Art. 1 icw Art 4: Mr. A is a resident of State AArt. 2: Individual income taxArt. 17: State B may tax the premiumsArt. 23: State A has to avoid the double taxation through exemption or credit methodArt.17 Aritistes and Sportsme nCase 2: Susa n Miller is a reside nt of State A. She

34、 is an artist and performs in State B un der her employme nt con tract with X Corp. X Corp is a reside nt of State A. Susa n Miller does not own any shares in X Corp. A theatre in State B (where Mrs Miller performs un der her con tract with X Corp) pays a fee of 100 to X Corp, while Mrs Miller gets

35、a salary of 10 every month from X Corp, irrespective if they have an engagement for Mrs Miller.2014/5/725262014/5/7352014/5/736#2014/5/72014/5/7352014/5/736#2014/5/7Art.17 Aritistes and Sportsme nSoluti on:Treaty betwee n A and B:Art. 1 icw Art. 4 both resident in AArt. 2 corporate and individual in

36、come taxArtt 7 PE?BUTAcc. to Art. 17 (2) remuneration is still income of artistests State B may tax; otherwise State Bwould not have a taxing right unless there is a PE acc. to Art. 7Art. 23 to avoid double taxationAttached Art.17 Aritistes and Sportsmen1. Notwithsta nding the provisi ons of Article

37、s 7 and 15, in come derived by a reside nt of a Con tract ing State as an en tertai ner, such as a theatre, moti on picture, radio or television artiste, or a musician, or as a sportsman, from his pers onal activities as such exercised in the other Con tracti ng State, may be taxed in that other Sta

38、te.2. Where incommen hespsteot pospeEdoaiailvitiastiexecisedebciseid by an entertainer or a sportsman in his capacity as such accrues not to theen terta iner or sportsma n himself but to ano ther pers on, that in come may, notwithstanding the provisions of Articles 7 and 15, be taxed in the Con trac

39、t ing State in which the activities of the en terta iner or sportsma n are exercised.2014/5/7352014/5/736#2014/5/72014/5/7352014/5/736#2014/5/72014/5/7272014/5/7282014/5/7352014/5/73682014/5/72014/5/7352014/5/736#2014/5/7Gover nment ServiceArt.19 Government ServiceArt. 19 (1): active employment, rem

40、uneration paid by a contracting State/political subdivision/local authority, in respect of services rendered to itGeneral: stateof fund principle of Art. 19 (1) (a)Exceppon in Art. 19 (1) (b()Art.19 OECD MCEmpoyme nt exercised in other state AND Employee is n ati onal of the other state OR Not only

41、reside nt in the other state in order to perform services there.Art. 19 (2): pensionsArt. 19 (3): exercise of a busniess activity of a contracting state or one of its regional corporations are not covered by Art. 19Art.19 Government ServiceCase 1： Michael Merker is a citizen of A and lives in state

42、B. He is employed by the A Ministry of Education and organizes seminars in B. These seminars are about the wine culture in A. The participants of this seminar have to payyather highcfees to the Ministry in State A in order to be admitted. Therefore the A Ministry has some profits from this activity.

43、 Where is Michael Merker' semployment remuneration taxed?Art.19 Government ServiceSolution:Treaty between A and BArt. 1 icw Art. 4: Michael is reside nt in State BArt. 2: In come taxArt. 19 (1) (a): exclusive taxation of State A? Principle of fundingArt. 19 (1) (b): not applicableArt. 19 (3): co

44、uld be applicabledepe nd- on the facts ofthe case2014/5/7352014/5/73692014/5/72014/5/7352014/5/736#2014/5/72014/5/7312014/5/7322014/5/7352014/5/736#2014/5/72014/5/7352014/5/736#2014/5/7AttachedArt.19 Government ServiceAttached:Art.19 GovernmentService2014/5/7352014/5/736#2014/5/72014/5/7352014/5/736

45、#2014/5/71. a) Salaries, wages and other similar rem un erati on paid by a Con tract ing State or a political subdivisi on or a local authority thereof to an in dividual in respect of services ren dered to that State or subdivisi on or authority shall be taxable only in that State.b) However, such s

46、alaries, wages and other similar rem un erati on shall be taxable only in the other Con tract ing State if the services are ren dered in thattStete and ththi ndividuid is al reside nt of that State w®b:th(i) is a n ati onal of that State; or(ii) did not become a reside nt of that State solely f

47、or the purpose of ren deri ng the services.2. a) Notwithsta nding the provisi ons of paragraph 1, pensions and other similar rem un erati on paid by, or out of funds created by, a Con tracti ng State or a political subdivisi on or a local authority thereof to an in dividual in respect of services re

48、n dered to that State or subdivisi on or authority shall be taxable only in that State.b) However, such pensions and other similar rem un erati on shall be taxable only in thh oth&r CcCitradtti ngtiStateStf theijfntiiviciuatli isi(a reside nt of, iatid a f d n ati onal of that State.3. The provi

49、sions of Articles 15, 16, 17, and 18 shall apply to salaries, wages, pensions, and other similar rem un erati on in respect of servicesren dered in conn ecti on with a bus in ess carried on by a Con tracti ng State or a political subdivision or a local authority thereof.2014/5/7352014/5/736#2014/5/7

50、2014/5/7352014/5/736#2014/5/72014/5/7332014/5/7342014/5/7352014/5/736#2014/5/72014/5/7352014/5/736#2014/5/7Art. 18 Pe nsionsPensionsExclusive taxation right for the state of residenceDefination: Pensions and other similar paymentsPayme nt upon or after retireme ntPayments for former dependent employ

51、mentServes tdcseseiuErbhhhcnpiepient s livelihood afferetietirenentArt. 18 and Art. 19 OECD MCI.e. ben efit for old-age, disability, payme nt gran ted in lieu of a pensionEmployment needs to be“ past ”Art.19 takes precedence2014/5/7352014/5/736102014/5/72014/5/738Art. 18 Pen si onsCase 1： Hafner liv

52、ed in State A and was employed by a corporation. After his retirement he moved to State B, but remains a citizen of State A.Art. 18 Pen sio nsSolution:Treaty between A and BArt.1 icw Art. 4: resident in State BArt.22: iriradViddUafa lin draammfeaxtaxArt.18: pension from dependent employment taxed on

53、ly in the residence state? Taxation only in state B (state of residence )2014/5/7412014/5/742112014/5/72014/5/7412014/5/742#2014/5/7Art. 18 Pen si onsCase 2： Hafner lived in State A and was employed by the government of state A. After his retirement he moved to State B, but remains a citizen of Stat

54、e A .Art. 18 Pen sio nsSolution:Treaty between A and BArt. 1 icw Art. 4: resident in State BArt. 2 individiual income taxArt. 19 (2) (a) pension from government of the other contracting state ? principle of state of fundingArt. 19 (2) (b) taxation only in state B if Hafner is a resident and a citizen of state B not apcable? Taxation only in state