Artykuł 29

Wypowiedzenie [Wypowiedzenie]

1. Niniejsza Konwencja obowiązuje na czas nieokreślony, lecz każde Umawiające się Państwo może wypowiedzieć Konwencję, przekazując drogą dyplomatyczną pisemną notyfikację o wypowiedzeniu, w dniu 30 czerwca lub przed tym dniem w każdym roku kalendarzowym rozpoczynającym się po upływie pięciu lat od daty wejścia Konwencji w życie.

2. W takim przypadku Konwencja przestanie obowiązywać:

(a) w Polsce,

(i) w odniesieniu do podatków pobieranych u źródła – od kwot dochodu osiągniętego w dniu 1 stycznia lub po tym dniu w roku kalendarzowym następującym po roku, w którym taka notyfikacja została przekazana;

(ii) w odniesieniu do innych podatków od dochodu i podatku od majątku – do podatków naliczanych za każdy rok podatkowy rozpoczynający się w dniu 1 stycznia lub po tym dniu w roku kalendarzowym następującym po roku, w którym taka notyfikacja została przekazana, a

(b) w Chile,

w odniesieniu do podatków od uzyskanych dochodów i wpłaconych kwot, zapisanych na rachunek, postawionych do dyspozycji lub zaliczonych jako koszty w dniu 1 stycznia lub po tym dniu w roku kalendarzowym następującym po roku, w którym taka notyfikacja została przekazana.

NA DOWÓD powyższego niżej podpisani, należycie do tego upoważnieni, podpisali niniejszą Konwencję.

SPORZĄDZONO w Santiago de Chile dnia 10 marca 2000 r., w dwóch egzemplarzach, każdy w językach polskim, hiszpańskim i angielskim, przy czym wszystkie teksty są jednakowo autentyczne. W razie rozbieżności przy interpretacji niniejszej Konwencji rozstrzygający będzie tekst angielski.

PROTOKÓŁ

do Konwencji między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Chile w sprawie unikania podwójnego opodatkowania i zapobiegania uchylaniu się od opodatkowania w zakresie podatków od dochodu i od majątku

Przy podpisaniu Konwencji między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Chile w sprawie unikania podwójnego opodatkowania i zapobiegania uchylaniu się od opodatkowania w zakresie podatków od dochodu i od majątku, Sygnatariusze uzgodnili, że następujące postanowienia będą stanowiły integralną część Konwencji.

1. Artykuł 5 ustęp 3

W celu wyliczenia terminów w tym ustępie, działalność prowadzona przez przedsiębiorstwo powiązane z innym przedsiębiorstwem w rozumieniu artykułu 9 niniejszej Konwencji będzie łączona z okresem, przez który działalność jest prowadzona przez przedsiębiorstwo, o ile działalność przedsiębiorstwa powiązanego jest w istotnym stopniu taka sama.

2. Artykuł 10

W przypadku Chile postanowienia ustępu 2 artykułu 10 (Dywidendy) Konwencji nie będą ograniczały stosowania podatku dodatkowego pod warunkiem, że podatek pierwszej kategorii jest w pełni zaliczany przy wyliczaniu kwoty podatku dodatkowego do zapłacenia. Ponadto, od momentu, gdy przestanie obowiązywać ta klauzula, Umawiające się Państwa będą konsultować się ze sobą pod kątem wniesienia poprawki do Konwencji w celu przywrócenia równowagi korzyści płynących z Konwencji.

3. Artykuły 11 i 12

W przypadku gdy Chile zawrze umowę lub konwencję z państwem trzecim, będącym członkiem Organizacji Współpracy Gospodarczej i Rozwoju, w której Chile zgodzi się na zwolnienie odsetek lub należności licencyjnych (zarówno ogólne, jak i określonych rodzajów odsetek lub należności licencyjnych) powstałych w Chile z opodatkowania lub obniży stawkę opodatkowania ustaloną w ustępie 2 artykułu 11 lub 12 odpowiednio, to takie zwolnienie lub obniżenie stawki będzie stosowane automatycznie na takich samych warunkach, jakby były one wymienione w niniejszej Konwencji.

4. Artykuł 24

(a) Żadne postanowienie artykułu 24 niniejszej Konwencji nie może utrudniać stosowania postanowień (lub zmiany takich postanowień) istniejących w momencie podpisania Konwencji.

(b) Stawka podatku w wysokości 30 %, o której mowa w artykule 31 numer 12 chilijskiej Ustawy o Podatku Dochodowym (Léy sobre Impuesto a la Renta) będzie zastąpiona stawką podatkową w wysokości 15 % dla beneficjentów płatności należności licencyjnych mających miejsce zamieszkania lub siedzibę w Polsce.

5. Postanowienia ogólne

(a) Fundusze inwestycyjne lub inne fundusze wszelkiego rodzaju, założone w celu prowadzenia takiej działalności w Chile i na podstawie prawa chilijskiego, będą traktowane dla celów niniejszej Konwencji jako mające siedzibę w Chile i podlegające opodatkowaniu zgodnie z chilijskim ustawodawstwem podatkowym w odniesieniu do dywidend, odsetek, zysków majątkowych i innych dochodów osiąganych z mienia lub inwestycji w Chile. Postanowienia niniejszego ustępu stosuje się bez względu na inne postanowienia niniejszej Konwencji.

(b) W rozumieniu artykułu XXII ustęp 3 (Konsultacje) Układu ogólnego w sprawie handlu usługami Umawiające się Państwa zgadzają się, bez względu na postanowienia tego ustępu, że wszelki spór między nimi w kwestii, czy dane działanie mieszczące się w niniejszej Konwencji może być przedłożone Radzie ds. Handlu Usługami, zgodnie z tym ustępem może nastąpić tylko przy zgodzie obu Umawiających się Państw. Spór dotyczący interpretacji tego ustępu będzie rozstrzygnięty zgodnie z postanowieniami artykułu 25 ustęp 3 lub przy braku porozumienia w ramach tej procedury, zgodnie z inną procedurą uzgodnioną przez oba Umawiające się Państwa.

(c) Żadne postanowienie niniejszej Konwencji nie może naruszyć stosowania istniejących postanowień Ustawy chilijskiej DL 600 (Statut inwestycji zagranicznych) według ich stanu prawnego w momencie podpisywania niniejszej Konwencji, jak i z uwzględnieniem ewentualnych przyszłych zmian, nie naruszając ogólnych zasad Konwencji.

(d) Z uwagi na to, że głównym celem Konwencji jest unikanie międzynarodowego podwójnego opodatkowania Umawiające się Państwa zgadzają się, że w przypadku gdy postanowienia Konwencji będą wykorzystywane w celu korzyści niezamierzonych właściwe organy Umawiających się Państw zalecą, zgodnie z procedurą wzajemnego porozumiewania się artykułu 25, wprowadzenie do Konwencji specjalnych zmian. Umawiające się Państwa zgadzają się następnie, że takie zalecenia będą rozważane i przedyskutowane w sposób sprawny w celu zmiany Konwencji, gdy zajdzie taka potrzeba.

(e) Żadne postanowienia niniejszej Konwencji nie będą miały wpływu na opodatkowanie w Chile osoby mającej miejsce zamieszkania lub siedzibę w Polsce w odniesieniu do zysków przypisanych zakładowi położonemu w Chile zarówno w ramach pierwszej kategorii podatku, jak i podatku dodatkowego, lecz tylko dopóki ten podatek pierwszej kategorii może być odliczany przy obliczaniu podatku dodatkowego.

NA DOWÓD powyższego niżej podpisani, należycie do tego upoważnieni, podpisali niniejszy Protokół.

SPORZĄDZONO w Santiago de Chile dnia 10 marca 2000 r., w dwóch egzemplarzach, każdy w językach polskim, hiszpańskim i angielskim, przy czym wszystkie teksty są jednakowo autentyczne. W razie rozbieżności przy interpretacji rozstrzygający będzie tekst angielski.

CONVENTION

between the Government of the Republic of Poland and the Government of the Republic of Chile for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital [3]

The Government of the Republic of Poland and the Government of the Republic of Chile,

desiring to conclude a Convention 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 Convention

Article 1

Persons covered

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

Article 2

Taxes covered

1. This Convention shall apply to taxes on income and on capital imposed on behalf of a Contracting State or of its political subdivisions 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 amount of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

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

(a) in the Republic of Poland:

(i) personal income tax, and

(ii) corporate income tax

(hereinafter referred to as „Polish tax”); and

(b) in the Republic of Chile, the taxes imposed under the Income Tax Act, „Léy sobre Impuesto a la Renta” (hereinafter referred to as „Chilean tax”).

4. The Convention shall apply also to any identical or substantially similar taxes and to taxes on capital which are imposed after the date of signature of the Convention 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 respective taxation laws.

CHAPTER II

Definitions

Article 3

General definitions

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

(a) the term „Poland” means the Republic of Poland and includes its national territory and any area beyond its territorial waters, within which under the laws of the Republic of Poland and in accordance with international law, the Republic of Poland may exercise its sovereign rights over the sea-bed, its subsoil and their natural resources;

(b) the term „Chile” means the Republic of Chile and includes in addition to the national territory, any maritime and submaritime areas over which the Republic of Chile exercises sovereign rights or jurisdiction in accordance with international law;

(c) the terms "a Contracting State" and "the other Contracting State" mean as the context requires, Poland or Chile;

(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 which is treated as a body corporate for tax purposes;

(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 or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;

(h) the term "competent authority" means:

(i) in the case of the Republic of Poland, the Minister of Finance or his authorised representative, and

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

(i) the term "national" means:

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

(ii) any legal person or association constituted in accordance with the laws in force in a Contracting State.

2. As regards the application of the Convention 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 Convention 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 Convention, 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, place of incorporation or any other criterion of a similar nature and also includes that State and any political subdivision 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 of 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 procedure.

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 of which it is a national. If the person is a national of both Contracting States or of neither of them the Contracting States shall by mutual agreement procedure endeavour to settle the question. In the absence of a mutual agreement by the competent authorities of the Contracting States, the person shall not be entitled to any relief or exemption from tax provided by the Convention.

Article 5

Permanent establishment

1. For the purposes of this Convention, 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 relating to the exploration for or the exploitation of natural resources.

3. The term "permanent establishment" shall also include:

(a) a building site or construction or installation project and the supervisory activities in connection therewith, but only if such building site. construction or activities last more than six months, and

(b) the furnishing of services, including consultancy services, by an enterprise through employees or other individuals engaged by the enterprise for such purpose, but only where such activities continue within the country for a period or periods aggregating more than six months within any 12 months 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 advertising, supplying information or carrying out scientific research for the enterprise, if such activity is of a preparatory or auxiliary character.

5. Notwithstanding the provisions of paragraphs 1 and 2 this Article, where a person (other than an agent of an independent status to whom paragraph 7 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. Notwithstanding the preceding provisions of this Article, an insurance company resident of a Contracting State shall, except in the case of reinsurance, be deemed to have a permanent establishment in the other Contracting State if it collects premiums in the territory of that other State or if it insures risks situated therein through a representative other than an agent of independent status to whom paragraph 7 of this Article applies.

7. 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, and that the conditions that are made or imposed in their commercial of financial relations with such enterprises do not differ from those which would be generally made by independent agents.

8. 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. For the purposes of this Convention, 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 and aircraft 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 or has carried 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 with the enterprise of which it is a permanent establishment.

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. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than as a reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission or other charges, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent to the permanent establishment.

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 Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.

Article 8

International transport

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

2. For the purposes of this Article:

(a) the term "profits" includes:

(i) gross revenues derived directly from the operation of ships or aircraft in international traffic, and

(ii) interest over the amounts derived directly from the operation of ships or aircraft, in international traffic, only if such interest is incidental to the operation.

(b) the expression "operation of ships and aircraft" by an enterprise, also include the charter or rental on a bareboat basis of ships and aircraft, if that charter or rental is incidental to the operation by the enterprise of ships or aircraft in international traffic.

3. Profits of an enterprise of a Contracting State from the use or rental of containers operated in international traffic shall be taxable only in that State.

4. 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

Associated enterprises

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 are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, has not so accrued, may be included in the profits of that enterprise and taxed accordingly.

2. Where a Contracting State includes in the profits of an enterprise of that State – and taxes accordingly – profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State, shall, if it agrees, make an appropriate adjustment to the amount of tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.

Article 10

Dividends

1. Dividends paid by a company which is the resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.

2. Such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State. However, if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed:

(a) 5 per cent of the gross amount of the dividends if the beneficial owner is a company which controls directly 20 per cent of the voting stock of the company paying the dividends;

(b) 15 per cent of the gross amount of the dividends in all other cases.

The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.

3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other rights which is 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.

4. The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of 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 therein, or performs in that other State, independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such 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, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.

Article 11

Interest

1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that Contracting State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed:

(a) 4 per cent of the gross amount of the interest if the beneficial owner of the interest is either:

(i) a bank;

(ii) an insurance company;

(iii) an enterprise substantially deriving its gross income from the active and regular conduct of a lending or finance business involving transactions with unrelated persons, where the enterprise is unrelated to the payer of the interest. For the purposes of this clause, the term “lending or finance business” includes the business of issuing letters of credit, providing guarantees or providing credit card services;

(iv) an enterprise that sold machinery or equipment, where the interest is paid with respect to indebtedness arising as part of the sale on credit of such machinery or equipment; or

(v) any other enterprise, provided that in the three taxable years preceding the taxable year in which the interest is paid, the enterprise derives more than 50 per cent of its liabilities from the issuance of bonds in the financial markets or from taking deposits at interest, and more than 50 per cent of the assets of the enterprise consist of debt-claims against unrelated persons;

(b) 5 per cent of the gross amount of the interest derived from bonds or securities that are regularly and substantially traded on a recognized securities market;

(c) 10 per cent of the gross amount of the interest in all other cases.

For the purposes of subparagraph (a), an enterprise is unrelated to a person if the enterprise does not have with the person a relationship described in subparagraph (a) or (b) of paragraph 1 of Article 9.

Notwithstanding the provisions of subparagraph (a), if interest referred to in that subparagraph is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to an arrangement involving back-to-back loans, such interest may be taxed in the Contracting State in which it arises but the tax so charged shall not exceed 10 per cent of the gross amount of the interest in cases provided in subparagraphs (iii) and (v) of the aforementioned subparagraph; and it shall not exceed 5 per cent of the gross amount of the interest in cases provided in subparagraphs (i), (ii) and (iv) of the same subparagraph.

It is understood that the term “arrangement involving back-to-back loans” would cover, inter alia, any kind of arrangement structured in such a way that a financial institution which is a resident of a Contracting State receives interest arising in the other Contracting State and the financial institution pays an equivalent interest to another person which, if the person received the interest directly from the other Contracting State, would not be entitled to limitation of tax under subparagraph (a) with respect to that interest in that other Contracting State.

The rate of 15 per cent shall apply in place of the rate provided in subparagraph (c) until December 31, 2018.

3. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. The term interest shall not include income dealt with in Article 10.

4. The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of 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 therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.

5. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest 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 beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.

7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the debt-claim in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.

Article 12

Royalties

1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that Contracting State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed:

(a) 2 per cent of the gross amount of the royalties for the use of, or the right to use, industrial, commercial or scientific equipment;

(b) 10 per cent of the gross amount of the royalties in all other cases.

3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work, including cinematographic films, any patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, any industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.

4. The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of 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 therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such 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 a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such 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 beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.

7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the rights in respect to which the royalties are paid to take advantage of this Article by means of that creation or assignment.

Article 13

Capital gains

1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State.

2. Gains from the alienation of movable property forming part of the business property of a permanent establishment that an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.

3. Gains from the alienation of ships or aircraft operated in international traffic or containers operated in international traffic or from movable property pertaining to the operation of such ships or aircraft shall be taxable only in the Contracting State of which the alienator is a resident.

4. Gains derived by a resident of a Contracting State from the alienation of instruments or other rights representing the capital of a company or any other type of financial instruments situated in the other Contracting State may by taxed in that other State.

5. Gains from the alienation of any property other than that referred to in the paragraphs mentioned above, shall be taxable only in the Contracting State of which the alienator is a resident.

Article 14

Independent personal services

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 Contracting State. However, such income may also be taxed in the other Contracting State:

(a) if he has a fixed base regularly available in the other Contracting State for purpose of performing the activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other State;

(b) if he is present in the other Contracting State for a period or periods amounting to or exceeding in the aggregate 183 days in any 12 month period; in that case, only so much of the income as is derived from the activities performed in that other State may be taxed in that State.

2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.

Article 15

Dependent personal services

1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other 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 derived there from 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 only in the first-mentioned 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 months period commencing or ending in the fiscal year concerned, and

(b) the remuneration is paid by, or on behalf of, a person being an employer who is not a resident of the other State, and

(c) the remuneration is not borne by a permanent establishment or a fixed base which the person being an employer has in the other State.

3. Notwithstanding the preceding provisions of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised aboard a ship or aircraft operated in international traffic shall be taxable only in that State.

Article 16

Directors' fees

Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors or a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.

Article 17

Artists and sportsmen

1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsman, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State. The income referred to in this paragraph shall include any income derived from any personal activity exercised in the other State related with that persons renown as an artiste or sportsman.

2. Where income in respect of personal activities exercised by an entertainer or a sportsman in his capacity as such accrues not to the entertainer or sportsman himself 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 or sportsman are exercised.

Article 18

Pensions

1. Pensions paid to a resident of a Contracting State shall be taxable only in that State.

2. Alimony and other maintenance payments paid by a resident of a Contracting State, and not deductible therein, to a resident of the other Contracting State shall be exempt from tax in both Contracting States.

3. Contributions in a year in respect of services rendered in that year paid by, or on behalf of, an individual who is a resident of a Contracting State or who is temporarily present in that State to a pension plan that is recognised for tax purposes in the other Contracting State shall, during a period not exceeding in the aggregate 60 months, be treated in the same way for tax purposes in the first-mentioned State as a contribution paid to a pension plan that is recognised for tax purposes in that first-mentioned State, if:

(a) such individual was contributing on a regular basis to the pension plan for a period ending immediately before that individual became a resident of or temporarily present in the first-mentioned State; and

(b) the competent authority of the first-mentioned State agrees that the pension plan generally corresponds to a pension plan recognised for tax purposes by that State.

For the purposes of this paragraph, "pension plan" includes a pension plan created under the social security system in a Contracting State.

Article 19

Government service

1. (a) Salaries, wages and other remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.

(b) However, such salaries, wages and other remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:

(i) is a national of that State; or

(ii) did not become a resident of that State solely for the purpose of rendering the services.

2. The provisions of Articles 15, 16 and 17 shall apply to salaries, wages and other remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.

Article 20

Students

Payments which a student or business apprentice or a trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.

Article 21

Other income

Items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention and arising in the other Contracting State may also be taxed in that other State.

CHAPTER IV

Taxation of capital

Article 22

Capital

1. Capital represented by immovable property owned by a resident of a Contracting State and situated in the other Contracting State, may be taxed in that other State.

2. Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State.

3. Capital represented by ships or aircraft operated in international traffic or containers operated in international traffic and by movable property pertaining to the operation of such ships or aircraft, shall be taxable only in the Contracting State of which the enterprise operating such ships or aircraft is resident.

4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State.

CHAPTER V

Methods for avoidance of double taxation

Article 23

Avoidance of double taxation

1. In the case of Poland, double taxation shall be avoided as follows:

(a) Where a resident of Poland derives income or owns capital which, in accordance with the provisions of this Convention, may be taxed in Chile, Poland shall allow:

(i) as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Chile;

(ii) as a deduction from the tax on the capital of that resident, an amount equal to the capital tax paid in Chile.

Such deduction in either case shall not, however, exceed that part of the income tax or capital tax, as computed before the deduction is given, which is attributable, as the case may be, to the income or the capital which may be taxed in Chile.

(b) Where, in accordance with any provision of the Convention, income derived or capital owned by a resident of Poland is exempt from tax in Poland, Poland may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.

2. In the case of Chile, double taxation shall be avoided as follows:

(a) residents in Chile, obtaining income which may, in accordance with the provisions of this Convention be subject to taxation in Poland, may credit the tax so paid against any Chilean tax payable in respect of the same income, subject to the applicable provisions of the law of Chile; this paragraph shall also apply to income referred to in Articles 6 and 11;

(b) where, in accordance with the provisions of this Convention, income derived or capital owned by a resident of Chile is exempt from tax in Chile, Chile may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.

CHAPTER VI

Special provisions

Article 24

Non-discrimination

1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.

2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.

3. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. Similarly, any debts of an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable capital of such enterprise, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned State.

4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are may be subjected.

5. In this Article, the term "taxation" means taxes that are the subject of this Convention.

Article 25

Mutual agreement procedure

1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national.

2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by a mutual agreement procedure with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention.

3. The competent authorities of the Contracting States shall endeavour to resolve by a mutual agreement procedure any difficulties or doubts arising as to the interpretation or application of the Convention.

4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.

5. If any difficulty or doubt arising as to the interpretation or application of the Convention cannot be resolved by the competent authorities, the case may, if the competent authorities of both Contracting States so agree, be submitted for arbitration. The procedures shall be agreed upon and shall be established between the Contracting States by notes to be exchanged through diplomatic channels.

Article 26

Exchange of information

1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention. They may also exchange such information as is necessary for carrying out the domestic laws of the Contracting States concerning value added taxes. 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) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Convention as well as value added taxes. 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 laws and the administrative practice of that or of the other Contracting State;

(b) to supply information which that is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;

(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy ("ordre public").

3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shail endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved even though the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested, such as depositions of witnesses and copies of unedited original documents (including books, papers, statements, records, accounts or writings), to the same extent such depositions and documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes.

Article 27

Members of diplomatic missions and consular posts

Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.

CHAPTER VII

Final provisions

Article 28

Entry into force

1. Each of the Contracting States shall notify the other through diplomatic channels of the completion of the procedures required by law for the bringing into force of this Convention. This Convention shall enter into force on the date of the receipt of the later of these notifications.

2. The provisions of this Convention shall have effect:

(a) in Poland,

(i) in respect of taxes withheld at source to amounts of income derived on or after 1st January in the calendar year next following the year in which the Convention enters into force;

(ii) in respect of other taxes on income and taxes on capital to such taxes chargeable for any taxable year beginning on or after 1^st January in the calendar year next following the year in which the Convention enters into force; and

(b) in Chile,

in respect of taxes on income obtained and amounts paid, credited to an account, put at the disposal or accounted as an expense, on or after 1st of January in the calendar year next following that in which this Convention enters into force.

Article 29

Termination

1. This Convention shall continue in effect indefinitely but either Contracting State may, on or before the thirtieth day of June in any calendar year following the period of five years from the day on which the Convention enters into force, give to the other Contracting State a notice of termination in writing through diplomatic channels.

2. The provisions of this Convention shall cease to have effect:

(a) in Poland,

(i) in respect of taxes withheld at source to amounts of income derived on or after 1^st January in the calendar year next following the year in which such notice has been given;

(ii) in respect of other taxes on income and taxes on capital to such taxes chargeable for any taxable year beginning on or after 1^st January in the calendar year next following the year in which such notice has been given; and

(b) in Chile,

in respect of taxes on income obtained and amounts paid, credited to an account, put at the disposal or accounted as an expense, on or after 1^st January in the calendar year next following that in which the notice is given.

IN WITNESS WHEREOF the undersigned, duly authorised to that effect, have signed this Convention.

DONE in duplicate at Santiago de Chile, this 10th day of March, 2000, in the Polish, Spanish and English languages, all texts being equally authentic. In case of divergence of interpretation the English text shall prevail.

PROTOCOL

to the Convention between the Government of the Republic of Poland and the Government of the Republic of Chile for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital

On signing the Convention between the Government of the Republic of Poland and the Government of the Republic of Chile for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, the Signatories have agreed that the following provisions shall form an integral part of the Convention.

1. Article 5 Paragraph 3

For the purposes of computing the time limits in this paragraph, activities carried on by an enterprise associated with another enterprise within the meaning of Article 9 of this Convention shall be aggregated with the period during which activities are carried on by the enterprise if the activities of the associated enterprises are substantially the same.

2. Article 10

In the case of Chile, the provisions of paragraph 2 of Article 10 (Dividends) of the Convention shall not limit application of the additional tax provided that the first category tax is fully creditable in computing the amount of additional tax to be paid. In addition, from such time as the proviso ceases to exist the Contracting States shall consult with each other with a view to amending the Convention to re-established the balance of benefits under the Convention.

3. Articles 11 and 12

If in any agreement or convention concluded by Chile with a third state, being a member of the Organisation for Economic Co-operation and Development, Chile would agree to exempt interest or royalties (either generally or for specific items of interest or royalties) arising in Chile from tax or to reduce the rate of tax provided in paragraph 2 of Article 11 or 12, respectively, such exemption or reduced rate shall automatically apply under the same conditions as if it had been specified in this Convention.

4. Article 24

a) Nothing in Article 24 of this Convention shall impede the application of an provision existing (or any amendment of such a provision) at the time of signing of the Convention.

b) The tax rate of 30 % referred to in Article 31. number 12 of the Chilean Income Tax Act (Léy sobre Impuesto a la Renta) shall be substituted by a tax rate of 15 % for the beneficiaries of royalty payments resident in Poland.

5. General Provisions

a) Investment funds or any other fund of any kind, organised in order to operate as such in Chile and under the laws of Chile shall, for the purposes of this Convention, be treated as a resident in Chile and subject to taxation in accordance with the Chilean tax legislation in respect of dividends, interest, capital gains and other income derived from property or investment in Chile. The provision of this paragraph shall apply notwithstanding any other provision of this Convention.

b) For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of Article 25 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.

c) Nothing in this Convention shall affect the application of the existing provisions of the Chilean legislation DL 600 (Foreign Investment Statute) as they are in force at the time of signature of this Convention and as they may be amended from time to time without changing the general principle hereof.

d) Considering that the main aim of the Convention is to avoid international double taxation, the Contracting States agree that, in the event the provisions of the Convention are used in such a manner as to provide benefits not contemplated or not intended, the competent authorities of the Contracting States shall, under the mutual agreement procedure of Article 25, recommend specific amendments to be made to the Convention. The Contracting States further agree that any such recommendation will be considered and discussed in an expeditious manner with a view to amending the Convention, where necessary.

e) Nothing in this Convention shall affect the taxation in Chile of a resident in Poland in respect of profits attributable to a permanent establishment situated in Chile, under both the first category tax and the additional tax but only as long as the first category tax is deductible in computing the additional tax.

IN WITNESS WHEREOF the undersigned, duly authorised to that effect, have signed this Protocol.

DONE in duplicate at Santiago de Chile, this 10th day of March, 2000, in the Polish, Spanish and English languages, all texts being equally authentic. In case of divergence of interpretation the English text shall prevail.

Po zaznajomieniu się z powyższą Konwencją, w imieniu Rzeczypospolitej Polskiej oświadczam, że:

– została ona uznana za słuszną zarówno w całości, jak i każde z postanowień w niej zawartych,

– jest przyjęta, ratyfikowana i potwierdzona,

– będzie niezmiennie zachowywana.

Na dowód czego wydany został akt niniejszy, opatrzony pieczęcią Rzeczypospolitej Polskiej.

Dano w Warszawie dnia 20 października 2003 r.

Artykuł 29

Wypowiedzenie [Wypowiedzenie]

1. Niniejsza Konwencja obowiązuje na czas nieokreślony, lecz każde Umawiające się Państwo może wypowiedzieć Konwencję, przekazując drogą dyplomatyczną pisemną notyfikację o wypowiedzeniu, w dniu 30 czerwca lub przed tym dniem w każdym roku kalendarzowym rozpoczynającym się po upływie pięciu lat od daty wejścia Konwencji w życie.

2. W takim przypadku Konwencja przestanie obowiązywać:

(a) w Polsce,

(i) w odniesieniu do podatków pobieranych u źródła – od kwot dochodu osiągniętego w dniu 1 stycznia lub po tym dniu w roku kalendarzowym następującym po roku, w którym taka notyfikacja została przekazana;

(ii) w odniesieniu do innych podatków od dochodu i podatku od majątku – do podatków naliczanych za każdy rok podatkowy rozpoczynający się w dniu 1 stycznia lub po tym dniu w roku kalendarzowym następującym po roku, w którym taka notyfikacja została przekazana, a

(b) w Chile,

w odniesieniu do podatków od uzyskanych dochodów i wpłaconych kwot, zapisanych na rachunek, postawionych do dyspozycji lub zaliczonych jako koszty w dniu 1 stycznia lub po tym dniu w roku kalendarzowym następującym po roku, w którym taka notyfikacja została przekazana.

NA DOWÓD powyższego niżej podpisani, należycie do tego upoważnieni, podpisali niniejszą Konwencję.

SPORZĄDZONO w Santiago de Chile dnia 10 marca 2000 r., w dwóch egzemplarzach, każdy w językach polskim, hiszpańskim i angielskim, przy czym wszystkie teksty są jednakowo autentyczne. W razie rozbieżności przy interpretacji niniejszej Konwencji rozstrzygający będzie tekst angielski.

PROTOKÓŁ

do Konwencji między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Chile w sprawie unikania podwójnego opodatkowania i zapobiegania uchylaniu się od opodatkowania w zakresie podatków od dochodu i od majątku

Przy podpisaniu Konwencji między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Chile w sprawie unikania podwójnego opodatkowania i zapobiegania uchylaniu się od opodatkowania w zakresie podatków od dochodu i od majątku, Sygnatariusze uzgodnili, że następujące postanowienia będą stanowiły integralną część Konwencji.

1. Artykuł 5 ustęp 3

W celu wyliczenia terminów w tym ustępie, działalność prowadzona przez przedsiębiorstwo powiązane z innym przedsiębiorstwem w rozumieniu artykułu 9 niniejszej Konwencji będzie łączona z okresem, przez który działalność jest prowadzona przez przedsiębiorstwo, o ile działalność przedsiębiorstwa powiązanego jest w istotnym stopniu taka sama.

2. Artykuł 10

W przypadku Chile postanowienia ustępu 2 artykułu 10 (Dywidendy) Konwencji nie będą ograniczały stosowania podatku dodatkowego pod warunkiem, że podatek pierwszej kategorii jest w pełni zaliczany przy wyliczaniu kwoty podatku dodatkowego do zapłacenia. Ponadto, od momentu, gdy przestanie obowiązywać ta klauzula, Umawiające się Państwa będą konsultować się ze sobą pod kątem wniesienia poprawki do Konwencji w celu przywrócenia równowagi korzyści płynących z Konwencji.

3. Artykuły 11 i 12

W przypadku gdy Chile zawrze umowę lub konwencję z państwem trzecim, będącym członkiem Organizacji Współpracy Gospodarczej i Rozwoju, w której Chile zgodzi się na zwolnienie odsetek lub należności licencyjnych (zarówno ogólne, jak i określonych rodzajów odsetek lub należności licencyjnych) powstałych w Chile z opodatkowania lub obniży stawkę opodatkowania ustaloną w ustępie 2 artykułu 11 lub 12 odpowiednio, to takie zwolnienie lub obniżenie stawki będzie stosowane automatycznie na takich samych warunkach, jakby były one wymienione w niniejszej Konwencji.

4. Artykuł 24

(a) Żadne postanowienie artykułu 24 niniejszej Konwencji nie może utrudniać stosowania postanowień (lub zmiany takich postanowień) istniejących w momencie podpisania Konwencji.

(b) Stawka podatku w wysokości 30 %, o której mowa w artykule 31 numer 12 chilijskiej Ustawy o Podatku Dochodowym (Léy sobre Impuesto a la Renta) będzie zastąpiona stawką podatkową w wysokości 15 % dla beneficjentów płatności należności licencyjnych mających miejsce zamieszkania lub siedzibę w Polsce.

5. Postanowienia ogólne

(a) Fundusze inwestycyjne lub inne fundusze wszelkiego rodzaju, założone w celu prowadzenia takiej działalności w Chile i na podstawie prawa chilijskiego, będą traktowane dla celów niniejszej Konwencji jako mające siedzibę w Chile i podlegające opodatkowaniu zgodnie z chilijskim ustawodawstwem podatkowym w odniesieniu do dywidend, odsetek, zysków majątkowych i innych dochodów osiąganych z mienia lub inwestycji w Chile. Postanowienia niniejszego ustępu stosuje się bez względu na inne postanowienia niniejszej Konwencji.

(b) W rozumieniu artykułu XXII ustęp 3 (Konsultacje) Układu ogólnego w sprawie handlu usługami Umawiające się Państwa zgadzają się, bez względu na postanowienia tego ustępu, że wszelki spór między nimi w kwestii, czy dane działanie mieszczące się w niniejszej Konwencji może być przedłożone Radzie ds. Handlu Usługami, zgodnie z tym ustępem może nastąpić tylko przy zgodzie obu Umawiających się Państw. Spór dotyczący interpretacji tego ustępu będzie rozstrzygnięty zgodnie z postanowieniami artykułu 25 ustęp 3 lub przy braku porozumienia w ramach tej procedury, zgodnie z inną procedurą uzgodnioną przez oba Umawiające się Państwa.

(c) Żadne postanowienie niniejszej Konwencji nie może naruszyć stosowania istniejących postanowień Ustawy chilijskiej DL 600 (Statut inwestycji zagranicznych) według ich stanu prawnego w momencie podpisywania niniejszej Konwencji, jak i z uwzględnieniem ewentualnych przyszłych zmian, nie naruszając ogólnych zasad Konwencji.

(d) Z uwagi na to, że głównym celem Konwencji jest unikanie międzynarodowego podwójnego opodatkowania Umawiające się Państwa zgadzają się, że w przypadku gdy postanowienia Konwencji będą wykorzystywane w celu korzyści niezamierzonych właściwe organy Umawiających się Państw zalecą, zgodnie z procedurą wzajemnego porozumiewania się artykułu 25, wprowadzenie do Konwencji specjalnych zmian. Umawiające się Państwa zgadzają się następnie, że takie zalecenia będą rozważane i przedyskutowane w sposób sprawny w celu zmiany Konwencji, gdy zajdzie taka potrzeba.

(e) Żadne postanowienia niniejszej Konwencji nie będą miały wpływu na opodatkowanie w Chile osoby mającej miejsce zamieszkania lub siedzibę w Polsce w odniesieniu do zysków przypisanych zakładowi położonemu w Chile zarówno w ramach pierwszej kategorii podatku, jak i podatku dodatkowego, lecz tylko dopóki ten podatek pierwszej kategorii może być odliczany przy obliczaniu podatku dodatkowego.

NA DOWÓD powyższego niżej podpisani, należycie do tego upoważnieni, podpisali niniejszy Protokół.

SPORZĄDZONO w Santiago de Chile dnia 10 marca 2000 r., w dwóch egzemplarzach, każdy w językach polskim, hiszpańskim i angielskim, przy czym wszystkie teksty są jednakowo autentyczne. W razie rozbieżności przy interpretacji rozstrzygający będzie tekst angielski.

CONVENTION

between the Government of the Republic of Poland and the Government of the Republic of Chile for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital

The Government of the Republic of Poland and the Government of the Republic of Chile,

desiring to conclude a Convention 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 Convention

Article 1

Persons covered

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

Article 2

Taxes covered

1. This Convention shall apply to taxes on income and on capital imposed on behalf of a Contracting State or of its political subdivisions 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 amount of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

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

(a) in the Republic of Poland:

(i) personal income tax, and

(ii) corporate income tax

(hereinafter referred to as „Polish tax”); and

(b) in the Republic of Chile, the taxes imposed under the Income Tax Act, „Léy sobre Impuesto a la Renta” (hereinafter referred to as „Chilean tax”).

4. The Convention shall apply also to any identical or substantially similar taxes and to taxes on capital which are imposed after the date of signature of the Convention 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 respective taxation laws.

CHAPTER II

Definitions

Article 3

General definitions

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

(a) the term „Poland” means the Republic of Poland and includes its national territory and any area beyond its territorial waters, within which under the laws of the Republic of Poland and in accordance with international law, the Republic of Poland may exercise its sovereign rights over the sea-bed, its subsoil and their natural resources;

(b) the term „Chile” means the Republic of Chile and includes in addition to the national territory, any maritime and submaritime areas over which the Republic of Chile exercises sovereign rights or jurisdiction in accordance with international law;

(c) the terms "a Contracting State" and "the other Contracting State" mean as the context requires, Poland or Chile;

(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 which is treated as a body corporate for tax purposes;

(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 or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;

(h) the term "competent authority" means:

(i) in the case of the Republic of Poland, the Minister of Finance or his authorised representative, and

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

(i) the term "national" means:

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

(ii) any legal person or association constituted in accordance with the laws in force in a Contracting State.

2. As regards the application of the Convention 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 Convention 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 Convention, 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, place of incorporation or any other criterion of a similar nature and also includes that State and any political subdivision 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 of 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 procedure.

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 of which it is a national. If the person is a national of both Contracting States or of neither of them the Contracting States shall by mutual agreement procedure endeavour to settle the question. In the absence of a mutual agreement by the competent authorities of the Contracting States, the person shall not be entitled to any relief or exemption from tax provided by the Convention.

Article 5

Permanent establishment

1. For the purposes of this Convention, 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 relating to the exploration for or the exploitation of natural resources.

3. The term "permanent establishment" shall also include:

(a) a building site or construction or installation project and the supervisory activities in connection therewith, but only if such building site. construction or activities last more than six months, and

(b) the furnishing of services, including consultancy services, by an enterprise through employees or other individuals engaged by the enterprise for such purpose, but only where such activities continue within the country for a period or periods aggregating more than six months within any 12 months 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 advertising, supplying information or carrying out scientific research for the enterprise, if such activity is of a preparatory or auxiliary character.

5. Notwithstanding the provisions of paragraphs 1 and 2 this Article, where a person (other than an agent of an independent status to whom paragraph 7 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. Notwithstanding the preceding provisions of this Article, an insurance company resident of a Contracting State shall, except in the case of reinsurance, be deemed to have a permanent establishment in the other Contracting State if it collects premiums in the territory of that other State or if it insures risks situated therein through a representative other than an agent of independent status to whom paragraph 7 of this Article applies.

7. 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, and that the conditions that are made or imposed in their commercial of financial relations with such enterprises do not differ from those which would be generally made by independent agents.

8. 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. For the purposes of this Convention, 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 and aircraft 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 or has carried 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 with the enterprise of which it is a permanent establishment.

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. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than as a reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission or other charges, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent to the permanent establishment.

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 Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.

Article 8

International transport

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

2. For the purposes of this Article:

(a) the term "profits" includes:

(i) gross revenues derived directly from the operation of ships or aircraft in international traffic, and

(ii) interest over the amounts derived directly from the operation of ships or aircraft, in international traffic, only if such interest is incidental to the operation.

(b) the expression "operation of ships and aircraft" by an enterprise, also include the charter or rental on a bareboat basis of ships and aircraft, if that charter or rental is incidental to the operation by the enterprise of ships or aircraft in international traffic.

3. Profits of an enterprise of a Contracting State from the use or rental of containers operated in international traffic shall be taxable only in that State.

4. 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

Associated enterprises

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 are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, has not so accrued, may be included in the profits of that enterprise and taxed accordingly.

2. Where a Contracting State includes in the profits of an enterprise of that State – and taxes accordingly – profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State, shall, if it agrees, make an appropriate adjustment to the amount of tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.

Article 10

Dividends

1. Dividends paid by a company which is the resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.

2. Such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State. However, if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed:

(a) 5 per cent of the gross amount of the dividends if the beneficial owner is a company which controls directly 20 per cent of the voting stock of the company paying the dividends;

(b) 15 per cent of the gross amount of the dividends in all other cases.

The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.

3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other rights which is 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.

4. The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of 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 therein, or performs in that other State, independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such 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, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.

Article 11

Interest

1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 15 per cent of the gross amount of the interest.

3. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. The term interest shall not include income dealt with in Article 10.

4. The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of 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 therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.

5. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest 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 beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.

7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the debt-claim in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.

Article 12

Royalties

1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed:

(a) 5 per cent of the gross amount of the royalties for the use of, or the right to use, any industrial, commercial or scientific equipment;

(b) 15 per cent of the gross amount of the royalties, in all other cases.

3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work, including cinematographic films, any patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, any industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.

4. The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of 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 therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such 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 a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such 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 beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.

7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the rights in respect to which the royalties are paid to take advantage of this Article by means of that creation or assignment.

Article 13

Capital gains

1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State.

2. Gains from the alienation of movable property forming part of the business property of a permanent establishment that an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.

3. Gains from the alienation of ships or aircraft operated in international traffic or containers operated in international traffic or from movable property pertaining to the operation of such ships or aircraft shall be taxable only in the Contracting State of which the alienator is a resident.

4. Gains derived by a resident of a Contracting State from the alienation of instruments or other rights representing the capital of a company or any other type of financial instruments situated in the other Contracting State may by taxed in that other State.

5. Gains from the alienation of any property other than that referred to in the paragraphs mentioned above, shall be taxable only in the Contracting State of which the alienator is a resident.

Article 14

Independent personal services

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 Contracting State. However, such income may also be taxed in the other Contracting State:

(a) if he has a fixed base regularly available in the other Contracting State for purpose of performing the activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other State;

(b) if he is present in the other Contracting State for a period or periods amounting to or exceeding in the aggregate 183 days in any 12 month period; in that case, only so much of the income as is derived from the activities performed in that other State may be taxed in that State.

2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.

Article 15

Dependent personal services

1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other 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 derived there from 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 only in the first-mentioned 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 months period commencing or ending in the fiscal year concerned, and

(b) the remuneration is paid by, or on behalf of, a person being an employer who is not a resident of the other State, and

(c) the remuneration is not borne by a permanent establishment or a fixed base which the person being an employer has in the other State.

3. Notwithstanding the preceding provisions of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised aboard a ship or aircraft operated in international traffic shall be taxable only in that State.

Article 16

Directors' fees

Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors or a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.

Article 17

Artists and sportsmen

1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsman, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State. The income referred to in this paragraph shall include any income derived from any personal activity exercised in the other State related with that persons renown as an artiste or sportsman.

2. Where income in respect of personal activities exercised by an entertainer or a sportsman in his capacity as such accrues not to the entertainer or sportsman himself 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 or sportsman are exercised.

Article 18

Pensions

1. Pensions paid to a resident of a Contracting State shall be taxable only in that State.

2. Alimony and other maintenance payments paid by a resident of a Contracting State, and not deductible therein, to a resident of the other Contracting State shall be exempt from tax in both Contracting States.

3. Contributions in a year in respect of services rendered in that year paid by, or on behalf of, an individual who is a resident of a Contracting State or who is temporarily present in that State to a pension plan that is recognised for tax purposes in the other Contracting State shall, during a period not exceeding in the aggregate 60 months, be treated in the same way for tax purposes in the first-mentioned State as a contribution paid to a pension plan that is recognised for tax purposes in that first-mentioned State, if:

(a) such individual was contributing on a regular basis to the pension plan for a period ending immediately before that individual became a resident of or temporarily present in the first-mentioned State; and

(b) the competent authority of the first-mentioned State agrees that the pension plan generally corresponds to a pension plan recognised for tax purposes by that State.

For the purposes of this paragraph, "pension plan" includes a pension plan created under the social security system in a Contracting State.

Article 19

Government service

1. (a) Salaries, wages and other remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.

(b) However, such salaries, wages and other remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:

(i) is a national of that State; or

(ii) did not become a resident of that State solely for the purpose of rendering the services.

2. The provisions of Articles 15, 16 and 17 shall apply to salaries, wages and other remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.

Article 20

Students

Payments which a student or business apprentice or a trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.

Article 21

Other income

Items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention and arising in the other Contracting State may also be taxed in that other State.

CHAPTER IV

Taxation of capital

Article 22

Capital

1. Capital represented by immovable property owned by a resident of a Contracting State and situated in the other Contracting State, may be taxed in that other State.

2. Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State.

3. Capital represented by ships or aircraft operated in international traffic or containers operated in international traffic and by movable property pertaining to the operation of such ships or aircraft, shall be taxable only in the Contracting State of which the enterprise operating such ships or aircraft is resident.

4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State.

CHAPTER V

Methods for avoidance of double taxation

Article 23

Avoidance of double taxation

1. In the case of Poland, double taxation shall be avoided as follows:

(a) Where a resident of Poland derives income or owns capital which, in accordance with the provisions of this Convention, may be taxed in Chile, Poland shall allow:

(i) as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Chile;

(ii) as a deduction from the tax on the capital of that resident, an amount equal to the capital tax paid in Chile.

Such deduction in either case shall not, however, exceed that part of the income tax or capital tax, as computed before the deduction is given, which is attributable, as the case may be, to the income or the capital which may be taxed in Chile.

(b) Where, in accordance with any provision of the Convention, income derived or capital owned by a resident of Poland is exempt from tax in Poland, Poland may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.

2. In the case of Chile, double taxation shall be avoided as follows:

(a) residents in Chile, obtaining income which may, in accordance with the provisions of this Convention be subject to taxation in Poland, may credit the tax so paid against any Chilean tax payable in respect of the same income, subject to the applicable provisions of the law of Chile; this paragraph shall also apply to income referred to in Articles 6 and 11;

(b) where, in accordance with the provisions of this Convention, income derived or capital owned by a resident of Chile is exempt from tax in Chile, Chile may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.

CHAPTER VI

Special provisions

Article 24

Non-discrimination

1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.

2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.

3. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. Similarly, any debts of an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable capital of such enterprise, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned State.

4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are may be subjected.

5. In this Article, the term "taxation" means taxes that are the subject of this Convention.

Article 25

Mutual agreement procedure

1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national.

2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by a mutual agreement procedure with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention.

3. The competent authorities of the Contracting States shall endeavour to resolve by a mutual agreement procedure any difficulties or doubts arising as to the interpretation or application of the Convention.

4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.

5. If any difficulty or doubt arising as to the interpretation or application of the Convention cannot be resolved by the competent authorities, the case may, if the competent authorities of both Contracting States so agree, be submitted for arbitration. The procedures shall be agreed upon and shall be established between the Contracting States by notes to be exchanged through diplomatic channels.

Article 26

Exchange of information

1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention. They may also exchange such information as is necessary for carrying out the domestic laws of the Contracting States concerning value added taxes. 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) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Convention as well as value added taxes. 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 laws and the administrative practice of that or of the other Contracting State;

(b) to supply information which that is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;

(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy ("ordre public").

3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shail endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved even though the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested, such as depositions of witnesses and copies of unedited original documents (including books, papers, statements, records, accounts or writings), to the same extent such depositions and documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes.

Article 27

Members of diplomatic missions and consular posts

Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.

CHAPTER VII

Final provisions

Article 28

Entry into force

1. Each of the Contracting States shall notify the other through diplomatic channels of the completion of the procedures required by law for the bringing into force of this Convention. This Convention shall enter into force on the date of the receipt of the later of these notifications.

2. The provisions of this Convention shall have effect:

(a) in Poland,

(i) in respect of taxes withheld at source to amounts of income derived on or after 1st January in the calendar year next following the year in which the Convention enters into force;

(ii) in respect of other taxes on income and taxes on capital to such taxes chargeable for any taxable year beginning on or after 1^st January in the calendar year next following the year in which the Convention enters into force; and

(b) in Chile,

in respect of taxes on income obtained and amounts paid, credited to an account, put at the disposal or accounted as an expense, on or after 1st of January in the calendar year next following that in which this Convention enters into force.

Article 29

Termination

1. This Convention shall continue in effect indefinitely but either Contracting State may, on or before the thirtieth day of June in any calendar year following the period of five years from the day on which the Convention enters into force, give to the other Contracting State a notice of termination in writing through diplomatic channels.

2. The provisions of this Convention shall cease to have effect:

(a) in Poland,

(i) in respect of taxes withheld at source to amounts of income derived on or after 1^st January in the calendar year next following the year in which such notice has been given;

(ii) in respect of other taxes on income and taxes on capital to such taxes chargeable for any taxable year beginning on or after 1^st January in the calendar year next following the year in which such notice has been given; and

(b) in Chile,

in respect of taxes on income obtained and amounts paid, credited to an account, put at the disposal or accounted as an expense, on or after 1^st January in the calendar year next following that in which the notice is given.

IN WITNESS WHEREOF the undersigned, duly authorised to that effect, have signed this Convention.

DONE in duplicate at Santiago de Chile, this 10th day of March, 2000, in the Polish, Spanish and English languages, all texts being equally authentic. In case of divergence of interpretation the English text shall prevail.

PROTOCOL

to the Convention between the Government of the Republic of Poland and the Government of the Republic of Chile for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital

On signing the Convention between the Government of the Republic of Poland and the Government of the Republic of Chile for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, the Signatories have agreed that the following provisions shall form an integral part of the Convention.

1. Article 5 Paragraph 3

For the purposes of computing the time limits in this paragraph, activities carried on by an enterprise associated with another enterprise within the meaning of Article 9 of this Convention shall be aggregated with the period during which activities are carried on by the enterprise if the activities of the associated enterprises are substantially the same.

2. Article 10

In the case of Chile, the provisions of paragraph 2 of Article 10 (Dividends) of the Convention shall not limit application of the additional tax provided that the first category tax is fully creditable in computing the amount of additional tax to be paid. In addition, from such time as the proviso ceases to exist the Contracting States shall consult with each other with a view to amending the Convention to re-established the balance of benefits under the Convention.

3. Articles 11 and 12

If in any agreement or convention concluded by Chile with a third state, being a member of the Organisation for Economic Co-operation and Development, Chile would agree to exempt interest or royalties (either generally or for specific items of interest or royalties) arising in Chile from tax or to reduce the rate of tax provided in paragraph 2 of Article 11 or 12, respectively, such exemption or reduced rate shall automatically apply under the same conditions as if it had been specified in this Convention.

4. Article 24

a) Nothing in Article 24 of this Convention shall impede the application of an provision existing (or any amendment of such a provision) at the time of signing of the Convention.

b) The tax rate of 30 % referred to in Article 31. number 12 of the Chilean Income Tax Act (Léy sobre Impuesto a la Renta) shall be substituted by a tax rate of 15 % for the beneficiaries of royalty payments resident in Poland.

5. General Provisions

a) Investment funds or any other fund of any kind, organised in order to operate as such in Chile and under the laws of Chile shall, for the purposes of this Convention, be treated as a resident in Chile and subject to taxation in accordance with the Chilean tax legislation in respect of dividends, interest, capital gains and other income derived from property or investment in Chile. The provision of this paragraph shall apply notwithstanding any other provision of this Convention.

b) For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of Article 25 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.

c) Nothing in this Convention shall affect the application of the existing provisions of the Chilean legislation DL 600 (Foreign Investment Statute) as they are in force at the time of signature of this Convention and as they may be amended from time to time without changing the general principle hereof.

d) Considering that the main aim of the Convention is to avoid international double taxation, the Contracting States agree that, in the event the provisions of the Convention are used in such a manner as to provide benefits not contemplated or not intended, the competent authorities of the Contracting States shall, under the mutual agreement procedure of Article 25, recommend specific amendments to be made to the Convention. The Contracting States further agree that any such recommendation will be considered and discussed in an expeditious manner with a view to amending the Convention, where necessary.

e) Nothing in this Convention shall affect the taxation in Chile of a resident in Poland in respect of profits attributable to a permanent establishment situated in Chile, under both the first category tax and the additional tax but only as long as the first category tax is deductible in computing the additional tax.

IN WITNESS WHEREOF the undersigned, duly authorised to that effect, have signed this Protocol.

DONE in duplicate at Santiago de Chile, this 10th day of March, 2000, in the Polish, Spanish and English languages, all texts being equally authentic. In case of divergence of interpretation the English text shall prevail.

Po zaznajomieniu się z powyższą Konwencją, w imieniu Rzeczypospolitej Polskiej oświadczam, że:

– została ona uznana za słuszną zarówno w całości, jak i każde z postanowień w niej zawartych,

– jest przyjęta, ratyfikowana i potwierdzona,

– będzie niezmiennie zachowywana.

Na dowód czego wydany został akt niniejszy, opatrzony pieczęcią Rzeczypospolitej Polskiej.

Dano w Warszawie dnia 20 października 2003 r.