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MULTILATERAL CONVENTIONTO IMPLEMENT TAX TREATY RELATED MEASURES TO PREVENT BASE EROSION AND PROFIT SHIFTING [Effective]
实施税收协定相关措施以防止税基侵蚀和利润转移的多边公约 [现行有效]
【法宝引证码】
  • Area: Taxation
  • Category of treaties: Convention
  • The place of signing: Paris, France
  • Signing Date: 11-24-2016

MULTILATERAL CONVENTIONTO IMPLEMENT TAX TREATY RELATED MEASURES TO PREVENT BASE EROSION AND PROFIT SHIFTING 

实施税收协定相关措施以防止税基侵蚀和利润转移的多边公约(中文译本)

The Parties to this Convention, 本公约各缔约方,
Recognising that governments lose substantial corporate tax revenue because of aggressive international tax planning that has the effect of artificially shifting profits to locations where they are subject to non-taxation or reduced taxation; 考虑到激进的国际税收筹划人为将利润转移至免税或低税地区,导致了政府公司税收的大量流失;
Mindful that base erosion and profit shifting (hereinafter referred to as “BEPS”) is a pressing issue not only for industrialised countries but also for emerging economies and developing countries; 意识到税基侵蚀和利润转移(以下称“BEPS”)问题对于工业化国家、新兴经济体和发展中国家都已迫在眉睫;
Recognising the importance of ensuring that profits are taxed where substantive economic activities generating the profits are carried out and where value is created; 认识到确保利润在产生利润的实质经济活动发生地和价值创造地征税的重要性;
Welcoming the package of measures developed under the OECD/G20 BEPS project (hereinafter referred to as the “OECD/G20 BEPS package”); 欢迎在经济合作与发展组织/二十国集团BEPS项目下制定的应对措施(以下称“OECD/G20BEPS应对措施”);
Noting that the OECD/G20 BEPS package included tax treaty-related measures to address certain hybrid mismatch arrangements, prevent treaty abuse, address artificial avoidance of permanent establishment status, and improve dispute resolution; 注意到OECD/G20BEPS应对措施包含了与税收协定相关的措施,以应对混合错配安排、防止协定滥用、解决人为规避常设机构构成问题并改进争议解决机制;
Conscious of the need to ensure swift, co-ordinated and consistent implementation of the treaty- related BEPS measures in a multilateral context; 意识到有必要确保税收协定相关BEPS措施在多边框架下迅速、协调、一致地实施;
Noting the need to ensure that existing agreements for the avoidance of double taxation on income are interpreted to eliminate double taxation with respect to the taxes covered by those agreements without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance (including through treaty-shopping arrangements aimed at obtaining reliefs provided in those agreements for the indirect benefit of residents of third jurisdictions); 注意到有必要确保将避免双重征税协定的目的理解为消除对协定适用税种的双重征税,同时不为通过逃税或避税(包括意在使第三方管辖区居民间接享受协定优惠的协定套用安排)导致的不征税或少征税创造机会;
Recognising the need for an effective mechanism to implement agreed changes in a synchronised and efficient manner across the network of existing agreements for the avoidance of double taxation on income without the need to bilaterally renegotiate each such agreement; 认识到有必要建立一个有效机制,以同步、高效地在现有避免双重征税协定网络中作出已达成共识的修改,无需逐一开展双边谈判修订协定;
Have agreed as follows: 达成协议如下:
PART I. SCOPE AND INTERPRETATION OF TERMS 

第一章公约范围和术语解释

Article 1 – Scope of the Convention   第一条公约范围
This Convention modifies all Covered Tax Agreements as defined in subparagraph a) of paragraph 1 of Article 2 (Interpretation of Terms). 本公约将修订所有符合第二条(术语解释)第一款第(一)项定义的“被涵盖税收协定”。
Article 2 – Interpretation of Terms   第二条术语解释
1. For the purpose of this Convention, the following definitions apply: 一、本公约中的术语定义如下:
a) The term “Covered Tax Agreement” means an agreement for the avoidance of double taxation with respect to taxes on income (whether or not other taxes are also covered): (一)“被涵盖税收协定”一语是指满足下列条件的对所得避免双重征税的协定(不论是否还适用于其他税种):
i) that is in force between two or more: 1.该协定在下述双方或多方之间生效:
A) Parties; and/or (1)公约缔约方;和/或
B) jurisdictions or territories which are parties to an agreement described above and for whose international relations a Party is responsible; and (2)作为该协定缔约方的管辖区或领土,且公约缔约方对其国际关系负责;并且
ii) with respect to which each such Party has made a notification to the Depositary listing the agreement as well as any amending or accompanying instruments thereto (identified by title, names of the parties, date of signature, and, if applicable at the time of the notification, date of entry into force) as an agreement which it wishes to be covered by this Convention. 2.公约缔约方已通知公约保存人,将该协定及其任何修订文书、随附文书列为拟适用于本公约的协定,协定、其修订文书和随附文书可通过标题、缔约方名称、签署日期、生效日期(如通知时已生效)确定。
b) The term “Party” means: (二)“公约缔约方”一语是指:
i) A State for which this Convention is in force pursuant to Article 34 (Entry into Force); or 2.按照第三十四条(生效),本公约对其生效的国家;或者
ii) A jurisdiction which has signed this Convention pursuant to subparagraph b) or c) of paragraph 1 of Article 27 (Signature and Ratification, Acceptance or Approval) and for which this Convention is in force pursuant to Article 34 (Entry into Force). 3.已根据第二十七条(签署和批准、接受或核准)第一款第(二)项或第(三)项签署本公约,且根据第三十四条(生效),本公约对其生效的管辖区。
c) The term “Contracting Jurisdiction” means a party to a Covered Tax Agreement. (三)“缔约管辖区”一语是指被涵盖税收协定的缔约方。
d) The term “Signatory” means a State or jurisdiction which has signed this Convention but for which the Convention is not yet in force. (四)“签约方”一语是指已签署本公约但本公约尚未对其生效的国家或管辖区。
2. As regards the application of this Convention at any time by a Party, any term not defined herein shall, unless the context otherwise requires, have the meaning that it has at that time under the relevant Covered Tax Agreement. 二、公约缔约一方在实施本公约的任何时候,未经本公约定义的任何用语,除上下文另有要求的以外,应当具有本公约实施时被涵盖税收协定中规定的含义。
PART II. HYBRID MISMATCHES 

第二章混合错配

Article 3 - Transparent Entities   第三条税收透明体
1. For the purposes of a Covered Tax Agreement, income derived by or through an entity or arrangement that is treated as wholly or partly fiscally transparent under the tax law of either Contracting Jurisdiction shall be considered to be income of a resident of a Contracting Jurisdiction but only to the extent that the income is treated, for purposes of taxation by that Contracting Jurisdiction, as the income of a resident of that Contracting Jurisdiction. 一、在被涵盖税收协定中,按照缔约管辖区任何一方的税法视为完全透明或部分透明的实体或安排,其取得或通过其取得的所得应视为缔约管辖区一方居民取得的所得,但仅以该缔约管辖区一方在税收上将该所得作为其居民取得的所得处理为限。
2. Provisions of a Covered Tax Agreement that require a Contracting Jurisdiction to exempt from income tax or provide a deduction or credit equal to the income tax paid with respect to income derived by a resident of that Contracting Jurisdiction which may be taxed in the other Contracting Jurisdiction according to the provisions of the Covered Tax Agreement shall not apply to the extent that such provisions allow taxation by that other Contracting Jurisdiction solely because the income is also income derived by a resident of that other Contracting Jurisdiction. 二、如缔约管辖区一方居民取得的所得按照被涵盖税收协定的规定可在缔约管辖区另一方征税,且该规定允许缔约管辖区另一方征税的原因仅仅是因为该所得也视同由该缔约管辖区另一方居民取得,则不能适用该协定要求缔约管辖区一方对该所得予以免税,或对已征税款予以减征或抵免的规定。
3. With respect to Covered Tax Agreements for which one or more Parties has made the reservation described in subparagraph a) of paragraph 3 of Article 11 (Application of Tax Agreements to Restrict a Party's Right to Tax its Own Residents), the following sentence will be added at the end of paragraph 1: “In no case shall the provisions of this paragraph be construed to affect a Contracting Jurisdiction's right to tax the residents of that Contracting Jurisdiction.” 三、对于被涵盖税收协定,如果公约缔约一方或多方已根据第十一条(税收协定对居民国征税权的限制)第三款第(一)项作出保留,则第一款结尾将增加以下内容:“在任何情况下,本款规定都不应被理解为影响缔约管辖区一方对其居民征税的权利”。
4. Paragraph 1 (as it may be modified by paragraph 3) shall apply in place of or in the absence of provisions of a Covered Tax Agreement to the extent that they address whether income derived by or through entities or arrangements that are treated as fiscally transparent under the tax law of either Contracting Jurisdiction (whether through a general rule or by identifying in detail the treatment of specific fact patterns and types of entities or arrangements) shall be treated as income of a resident of a Contracting Jurisdiction. 四、第一款(可能被第三款修订)应替代被涵盖税收协定中的下述规定适用,或者在被涵盖税收协定无相关规定的情况下适用。此类规定用于明确,关于实体或安排取得的或通过其取得的所得,在缔约管辖区任何一方的税法将该实体或安排视为税收透明体的情况下(不论通过一般规则,还是通过详细区分对特定模式和类型的实体或安排的处理),该所得是否应被视为缔约管辖区一方居民取得的所得。
5. A Party may reserve the right: 五、公约缔约一方可保留以下权利:
a) for the entirety of this Article not to apply to its Covered Tax Agreements; (一)本条规定整体不适用于其被涵盖税收协定;
b) for paragraph 1 not to apply to its Covered Tax Agreements that already contain a provision described in paragraph 4; (二)如其被涵盖税收协定已包含第四款所述规定,则第一款不适用于此类协定;
c) for paragraph 1 not to apply to its Covered Tax Agreements that already contain a provision described in paragraph 4 which denies treaty benefits in the case of income derived by or through an entity or arrangement established in a third jurisdiction; (三)如其被涵盖税收协定已包含第四款所述规定,对在第三方管辖区设立的实体或安排取得的或通过其取得的所得拒绝给予协定待遇,则第一款不适用于此类协定;
d) for paragraph 1 not to apply to its Covered Tax Agreements that already contain a provision described in paragraph 4 which identifies in detail the treatment of specific fact patterns and types of entities or arrangements; (四)如其被涵盖税收协定已包含第四款所述规定,详细区分了对特定模式和类型的实体或安排的处理,则第一款不适用于此类协定;
e) for paragraph 1 not to apply to its Covered Tax Agreements that already contain a provision described in paragraph 4 which identifies in detail the treatment of specific fact patterns and types of entities or arrangements and denies treaty benefits in the case of income derived by or through an entity or arrangement established in a third jurisdiction; (五)如其被涵盖税收协定已包含第四款所述规定,详细区分了对特定模式和类型的实体或安排的处理,且对在第三方管辖区设立的实体或安排取得的或通过其取得的所得拒绝给予协定待遇,则第一款不适用于此类协定;
f) for paragraph 2 not to apply to its Covered Tax Agreements; (六)第二款不适用于其被涵盖税收协定;
g) for paragraph 1 to apply only to its Covered Tax Agreements that already contain a provision described in paragraph 4 which identifies in detail the treatment of specific fact patterns and types of entities or arrangements. (七)第一款仅适用于其包含第四款所述规定的被涵盖税收协定,此类规定详细区分了对特定模式和类型的实体或安排的处理。
6. Each Party that has not made a reservation described in subparagraph a) or b) of paragraph 5 shall notify the Depositary of whether each of its Covered Tax Agreements contains a provision described in paragraph 4 that is not subject to a reservation under subparagraphs c) through e) of paragraph 5, and if so, the article and paragraph number of each such provision. In the case of a Party that has made the reservation described in subparagraph g) of paragraph 5, the notification pursuant to the preceding sentence shall be limited to Covered Tax Agreements that are subject to that reservation. Where all Contracting Jurisdictions have made such a notification with respect to a provision of a Covered Tax Agreement, that provision shall be replaced by the provisions of paragraph 1 (as it may be modified by paragraph 3) to the extent provided in paragraph 4. In other cases, paragraph 1 (as it may be modified by paragraph 3) shall supersede the provisions of the Covered Tax Agreement only to the extent that those provisions are incompatible with paragraph 1 (as it may be modified by paragraph 3). 六、未就第五款第(一)项或第(二)项所述内容作出保留的公约缔约方,应通知公约保存人其各被涵盖税收协定中是否包含未根据第五款第(三)项至第(五)项保留条款排除在外的第四款所述规定,如果包含的话,还应将各规定的条款序号通知公约保存人。如果公约缔约方已根据第五款第(七)项作出保留,上句所述通知内容应仅限于按照该项作出保留的被涵盖税收协定。如果被涵盖税收协定的所有缔约管辖区均已就该协定的某项规定作出此项通知,则应按照第四款规定,由第一款(可能被第三款修订)替代该规定。其他情况下,第一款(可能被第三款修订)应仅替代被涵盖税收协定中与第一款(可能被第三款修订)有冲突的规定。
Article 4 – Dual Resident Entities   第四条双重居民实体
1. Where by reason of the provisions of a Covered Tax Agreement a person other than an individual is a resident of more than one Contracting Jurisdiction, the competent authorities of the Contracting Jurisdictions shall endeavour to determine by mutual agreement the Contracting Jurisdiction of which such person shall be deemed to be a resident for the purposes of the Covered Tax Agreement, having regard to its place of effective management, the place where it is incorporated or otherwise constituted and any other relevant factors. In the absence of such agreement, such person shall not be entitled to any relief or exemption from tax provided by the Covered Tax Agreement except to the extent and in such manner as may be agreed upon by the competent authorities of the Contracting Jurisdictions. 一、如果按照被涵盖税收协定的规定,除个人以外的人成为两个或多个缔约管辖区的居民,缔约管辖区各方主管当局应考虑其实际管理机构所在地、注册地或成立地以及任何其他相关因素,尽力通过相互协商确定其在适用该协定时的居民身份。如未能达成一致,则该人不能享受该协定规定的任何税收优惠或减免,但缔约管辖区各方主管当局就享受协定待遇的程度和方式达成一致意见的情况除外。
2. Paragraph 1 shall apply in place of or in the absence of provisions of a Covered Tax Agreement that provide rules for determining whether a person other than an individual shall be treated as a resident of one of the Contracting Jurisdictions in cases in which that person would otherwise be treated as a resident of more than one Contracting Jurisdiction. Paragraph 1 shall not apply, however, to provisions of a Covered Tax Agreement specifically addressing the residence of companies participating in dual-listed company arrangements. 二、第一款应替代被涵盖税收协定中的下述规定适用,或者在被涵盖税收协定无相关规定的情况下适用。此类规定用于明确,除个人以外的人在被视为缔约管辖区各方中一方的居民的情况下,是否将其确定为其中一个缔约管辖区的居民。然而,第一款不应适用于被涵盖税收协定中专门确定参与双重上市公司安排的公司居民身份的规定。
3. A Party may reserve the right: 三、公约缔约一方可保留以下权利:
a) for the entirety of this Article not to apply to its Covered Tax Agreements; (一)本条规定整体不适用于其被涵盖税收协定;
b) for the entirety of this Article not to apply to its Covered Tax Agreements that already address cases where a person other than an individual is a resident of more than one Contracting Jurisdiction by requiring the competent authorities of the Contracting Jurisdictions to endeavour to reach mutual agreement on a single Contracting Jurisdiction of residence; (二)如其被涵盖税收协定规定,对于除个人以外的人是缔约管辖区双方或多方居民的,要求缔约管辖区各方主管当局尽力协商确定其为缔约管辖区一方居民,则本条规定整体不适用于此类协定;
c) for the entirety of this Article not to apply to its Covered Tax Agreements that already address cases where a person other than an individual is a resident of more than one Contracting Jurisdiction by denying treaty benefits without requiring the competent authorities of the Contracting Jurisdictions to endeavour to reach mutual agreement on a single Contracting Jurisdiction of residence; (三)如其被涵盖税收协定规定,对于除个人以外的人是缔约管辖区双方或多方居民的,拒绝给予协定待遇,而不要求缔约管辖区各方主管当局尽力协商确定其为缔约管辖区一方居民,则本条规定整体不适用于此类协定;
d) for the entirety of this Article not to apply to its Covered Tax Agreements that already address cases where a person other than an individual is a resident of more than one Contracting Jurisdiction by requiring the competent authorities of the Contracting Jurisdictions to endeavour to reach mutual agreement on a single Contracting Jurisdiction of residence, and that set out the treatment of that person under the Covered Tax Agreement where such an agreement cannot be reached; (四)如其被涵盖税收协定规定,对于除个人以外的人是缔约管辖区双方或多方居民的,要求缔约管辖区各方主管当局尽力协商确定其为缔约管辖区一方居民,且明确在缔约管辖区各方无法就其居民身份达成一致的情况下,其在该税收协定项下的处理方式,则本条规定整体不适用于此类协定;
e) to replace the last sentence of paragraph 1 with the following text for the purposes of its Covered Tax Agreements: “In the absence of such agreement, such person shall not be entitled to any relief or exemption from tax provided by the Covered Tax Agreement.”; (五)针对其被涵盖税收协定,将第一款最后一句替换为以下内容:“如未能达成一致,则该人不能享受该协定规定的任何税收优惠或减免。”;
f) for the entirety of this Article not to apply to its Covered Tax Agreements with Parties that have made the reservation described in subparagraph e). (六)如被涵盖税收协定的缔约对方已作为公约缔约方作出第(五)项所述保留,则本条规定整体不适用于此类协定。
4. Each Party that has not made a reservation described in subparagraph a) of paragraph 3 shall notify the Depositary of whether each of its Covered Tax Agreements contains a provision described in paragraph 2 that is not subject to a reservation under subparagraphs b) through d) of paragraph 3, and if so, the article and paragraph number of each such provision. Where all Contracting Jurisdictions have made such a notification with respect to a provision of a Covered Tax Agreement, that provision shall be replaced by the provisions of paragraph 1. In other cases, paragraph 1 shall supersede the provisions of the Covered Tax Agreement only to the extent that those provisions are incompatible with paragraph 1. 四、未就第三款第(一)项所述内容作出保留的公约缔约方,应通知公约保存人其各被涵盖税收协定中是否包含未根据第三款第(二)项至第(四)项保留条款排除在外的第二款所述规定,如果包含的话,还应将各此类规定的条款序号通知公约保存人。如果被涵盖税收协定的所有缔约管辖区均已就该协定中的某项规定作出此项通知,则应由第一款规定替代该规定。其他情况下,第一款应仅替代被涵盖税收协定中与第一款有冲突的规定。
Article 5 – Application of Methods for Elimination of Double Taxation   第五条消除双重征税方法的适用
1. A Party may choose to apply either paragraphs 2 and 3 (Option A), paragraphs 4 and 5 (Option B), or paragraphs 6 and 7 (Option C), or may choose to apply none of the Options. Where each Contracting Jurisdiction to a Covered Tax Agreement chooses a different Option (or where one Contracting Jurisdiction chooses to apply an Option and the other chooses to apply none of the Options), the Option chosen by each Contracting Jurisdiction shall apply with respect to its own residents. 一、公约缔约一方可选择适用A选项(第二款和第三款)、B选项(第四款和第五款)或者C选项(第六款和第七款),或者选择都不适用。如果被涵盖税收协定的缔约管辖区双方或各方选择不同(或者缔约管辖区一方选择适用某选项而另一方选择都不适用),缔约管辖区一方选择的选项应适用于其居民。
Option A A 选项
2. Provisions of a Covered Tax Agreement that would otherwise exempt income derived or capital owned by a resident of a Contracting Jurisdiction from tax in that Contracting Jurisdiction for the purpose of eliminating double taxation shall not apply where the other Contracting Jurisdiction applies the provisions of the Covered Tax Agreement to exempt such income or capital from tax or to limit the rate at which such income or capital may be taxed. In the latter case, the first-mentioned Contracting Jurisdiction shall allow as a deduction from the tax on the income or capital of that resident an amount equal to the tax paid in that other Contracting Jurisdiction. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given, which is attributable to such items of income or capital which may be taxed in that other Contracting Jurisdiction. 二、如果被涵盖税收协定规定,为消除双重征税,缔约管辖区一方居民取得的所得或者拥有的财产应在该缔约管辖区一方免税,则在缔约管辖区另一方适用被涵盖税收协定规定,对该所得或财产给予免税或者限制其征税税率的情况下,前述免税规定应不适用。如果缔约管辖区另一方适用限制税率征税,首先提及的缔约管辖区一方对其居民的所得或财产征税时,应允许等额扣除在缔约管辖区另一方缴纳的税款。然而,扣除额不应超过在扣除前计算的归属于缔约管辖区另一方可征税所得或财产的税款。
3. Paragraph 2 shall apply to a Covered Tax Agreement that would otherwise require a Contracting Jurisdiction to exempt income or capital described in that paragraph. 三、第二款应适用于要求缔约管辖区一方对该款所述所得或财产免税的被涵盖税收协定。
Option B B 选项
4. Provisions of a Covered Tax Agreement that would otherwise exempt income derived by a resident of a Contracting Jurisdiction from tax in that Contracting Jurisdiction for the purpose of eliminating double taxation because such income is treated as a dividend by that Contracting Jurisdiction shall not apply where such income gives rise to a deduction for the purpose of determining the taxable profits of a resident of the other Contracting Jurisdiction under the laws of that other Contracting Jurisdiction. In such case, the first-mentioned Contracting Jurisdiction shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in that other Contracting Jurisdiction. Such deduction shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is attributable to such income which may be taxed in that other Contracting Jurisdiction. 四、如果被涵盖税收协定规定,为消除双重征税,缔约管辖区一方居民取得的所得,因为在该缔约管辖区一方被视为股息处理而在该缔约管辖区一方给予免税,则在根据缔约管辖区另一方的法律,在确定该缔约管辖区另一方居民的应税利润时扣除该项所得的情况下,前述免税规定应不适用。这种情况下,首先提及的缔约管辖区一方应允许从对该居民所得的征税中扣除在缔约管辖区另一方所缴纳的所得税款。然而,扣除额不应超过在扣除前计算的归属于缔约管辖区另一方可征税所得的所得税款。
5. Paragraph 4 shall apply to a Covered Tax Agreement that would otherwise require a Contracting Jurisdiction to exempt income described in that paragraph. 五、第四款应适用于要求缔约管辖区一方对该款所述所得免税的被涵盖税收协定。
Option C C 选项
6. a) Where a resident of a Contracting Jurisdiction derives income or owns capital which may be taxed in the other Contracting Jurisdiction in accordance with the provisions of a Covered Tax Agreement (except to the extent that these provisions allow taxation by that other Contracting Jurisdiction solely because the income is also income derived by a resident of that other Contracting Jurisdiction), the first-mentioned Contracting Jurisdiction shall allow: 六、(一)如果缔约管辖区一方居民取得的所得或者拥有的财产,根据被涵盖税收协定的规定可以在缔约管辖区另一方征税(上述规定允许缔约管辖区另一方征税,仅是因为该所得也由该缔约管辖区另一方居民取得的情况除外),首先提及的缔约管辖区一方应允许:
i) as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in that other Contracting Jurisdiction; 1. 从对该居民所得的征税中,扣除与在缔约管辖区另一方缴纳的所得税相等的数额;
ii) as a deduction from the tax on the capital of that resident, an amount equal to the capital tax paid in that other Contracting Jurisdiction. Such deduction shall not, however, exceed that part of the income tax or capital tax, as computed before the deduction is given, which is attributable to the income or the capital which may be taxed in that other Contracting Jurisdiction. 2. 从对该居民财产的征税中,扣除与在缔约管辖区另一方缴纳的财产税相等的数额。然而,该扣除额不应超过在扣除前计算的归属于缔约管辖区另一方可征税所得或财产的所得税款或财产税款。
b) Where in accordance with any provision of the Covered Tax Agreement income derived or capital owned by a resident of a Contracting Jurisdiction is exempt from tax in that Contracting Jurisdiction, such Contracting Jurisdiction may nevertheless, in calculating the amount of tax on the remaining income or capital of such resident, take into account the exempted income or capital. (二)如果根据被涵盖税收协定的任何规定,缔约管辖区一方居民取得的所得或者拥有的财产在该缔约管辖区免税,在计算该居民其余所得或财产的税额时,该缔约管辖区仍可将免税所得或财产考虑在内。
7. Paragraph 6 shall apply in place of provisions of a Covered Tax Agreement that, for purposes of eliminating double taxation, require a Contracting Jurisdiction to exempt from tax in that Contracting Jurisdiction income derived or capital owned by a resident of that Contracting Jurisdiction which, in accordance with the provisions of the Covered Tax Agreement, may be taxed in the other Contracting Jurisdiction. 七、第六款应替代被涵盖税收协定中的下述规定适用。此类规定用于明确,为了避免双重征税,要求缔约管辖区一方对其居民取得的所得或者拥有的财产,在缔约管辖区另一方根据被涵盖税收协定的规定可对该所得或财产征税的情况下,应该给予免税。
8. A Party that does not choose to apply an Option under paragraph 1 may reserve the right for the entirety of this Article not to apply with respect to one or more identified Covered Tax Agreements (or with respect to all of its Covered Tax Agreements). 八、根据第一款选择不适用任何选项的公约缔约一方,可保留权利,使本条整体不适用于其一个或多个指定的被涵盖税收协定(或不适用于其所有被涵盖税收协定)。
9. A Party that does not choose to apply Option C may reserve the right, with respect to one or more identified Covered Tax Agreements (or with respect to all of its Covered Tax Agreements), not to permit the other Contracting Jurisdiction(s) to apply Option C. 九、未选择适用C选项的公约缔约一方,可就其一个或多个指定的被涵盖税收协定(或就其所有被涵盖税收协定)保留权利,不允许缔约管辖区另一方或另几方选择适用C选项。
10. Each Party that chooses to apply an Option under paragraph 1 shall notify the Depositary of its choice of Option. Such notification shall also include: 十、根据第一款选择适用某一选项的公约缔约方,应将其选项通知公约保存人。通知内容还应包括:
a) in the case of a Party that chooses to apply Option A, the list of its Covered Tax Agreements which contain a provision described in paragraph 3, as well as the article and paragraph number of each such provision; (一)如果公约缔约一方选择适用A选项,则为其包含第三款所述规定的被涵盖税收协定清单及各此类规定的条款序号;
b) in the case of a Party that chooses to apply Option B, the list of its Covered Tax Agreements which contain a provision described in paragraph 5, as well as the article and paragraph number of each such provision; (二)如果公约缔约一方选择适用B选项,则为其包含第五款所述规定的被涵盖税收协定清单及各此类规定的条款序号;
c) in the case of a Party that chooses to apply Option C, the list of its Covered Tax Agreements which contain a provision described in paragraph 7, as well as the article and paragraph number of each such provision. (三)如果公约缔约一方选择适用C选项,则为其包含第七款所述规定的被涵盖税收协定清单及各此类规定的条款序号。
An Option shall apply with respect to a provision of a Covered Tax Agreement only where the Party that has chosen to apply that Option has made such a notification with respect to that provision. 选项应仅在已选择该选项的公约缔约一方就被涵盖税收协定中的规定作出上述通知的情况下,适用于被涵盖税收协定中的规定。
PART III. TREATY ABUSE 

第三章协定滥用

Article 6 – Purpose of a Covered Tax Agreement   第六条被涵盖税收协定的目的
1. A Covered Tax Agreement shall be modified to include the following preamble text: 一、应修订被涵盖税收协定,在序言纳入下述内容:
“Intending to eliminate double taxation with respect to the taxes covered by this agreement without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance (including through treaty-shopping arrangements aimed at obtaining reliefs provided in this agreement for the indirect benefit of residents of third jurisdictions),”. “旨在消除对本协定所适用税种的双重征税,同时防止逃避税行为所造成的不征税或少征税(包括通过协定套用安排,为第三方管辖区居民间接获得本协定下的税收优惠)”。
2. The text described in paragraph 1 shall be included in a Covered Tax Agreement in place of or in the absence of preamble language of the Covered Tax Agreement referring to an intent to eliminate double taxation, whether or not that language also refers to the intent not to create opportunities for non-taxation or reduced taxation. 二、第一款所述内容应纳入被涵盖税收协定,替代被涵盖税收协定序言中旨在消除双重征税的表述,或者在被涵盖税收协定序言无此表述的情况下纳入,无论该表述是否提及避免造成不征税或少征税的目的。
3. A Party may also choose to include the following preamble text with respect to its Covered Tax Agreements that do not contain preamble language referring to a desire to develop an economic relationship or to enhance co-operation in tax matters: 三、在被涵盖税收协定序言未提及发展经济关系或者加强税收合作意愿相关内容的情况下,公约缔约一方也可选择在被涵盖税收协定序言中纳入以下内容:
“Desiring to further develop their economic relationship and to enhance their co-operation in tax matters,”. “希望进一步发展其经济关系并加强税收合作,”。
4. A Party may reserve the right for paragraph 1 not to apply to its Covered Tax Agreements that already contain preamble language describing the intent of the Contracting Jurisdictions to eliminate double taxation without creating opportunities for non-taxation or reduced taxation, whether that language is limited to cases of tax evasion or avoidance (including through treaty-shopping arrangements aimed at obtaining reliefs provided in the Covered Tax Agreement for the indirect benefit of residents of third jurisdictions) or applies more broadly. 四、如被涵盖税收协定序言已包含旨在消除双重征税,同时避免造成不征税或少征税的内容,公约缔约一方可保留权利,使第一款不适用于这些被涵盖税收协定,不论该内容限于逃税或避税案件(包括通过协定套用安排,为第三方管辖区居民间接获得本协定下的税收优惠)还是适用于更广范围。
5. Each Party shall notify the Depositary of whether each of its Covered Tax Agreements, other than those that are within the scope of a reservation under paragraph 4, contains preamble language described in paragraph 2, and if so, the text of the relevant preambular paragraph. Where all Contracting Jurisdictions have made such a notification with respect to that preamble language, such preamble language shall be replaced by the text described in paragraph 1. In other cases, the text described in paragraph 1 shall be included in addition to the existing preamble language. 五、除根据第四款作出保留的情况外,公约缔约各方应将其各被涵盖税收协定是否包含第二款所述的序言内容通知公约保存人,如果包括的话,也要通知相关序言段落的原文。如果所有缔约管辖区已就该序言内容作出通知,第一款所述内容应替代该序言内容。在其他情况下,应在现有序言内容基础上增加第一款所述内容。
6. Each Party that chooses to apply paragraph 3 shall notify the Depositary of its choice. Such notification shall also include the list of its Covered Tax Agreements that do not already contain preamble language referring to a desire to develop an economic relationship or to enhance co-operation in tax matters. The text described in paragraph 3 shall be included in a Covered Tax Agreement only where all Contracting Jurisdictions have chosen to apply that paragraph and have made such a notification with respect to the Covered Tax Agreement. 六、选择适用第三款的所有公约缔约方都应将其选择通知公约保存人。通知内容还应包括序言中尚未包含发展经济关系或加强税收合作意愿内容的被涵盖税收协定清单。第三款所述内容仅在被涵盖税收协定的所有缔约管辖区均已选择适用该款,且已就被涵盖税收协定作出该项通知的情况下,才应纳入被涵盖税收协定。
Article 7 – Prevention of Treaty Abuse   第七条防止协定滥用
1. Notwithstanding any provisions of a Covered Tax Agreement, a benefit under the Covered Tax Agreement shall not be granted in respect of an item of income or capital if it is reasonable to conclude, having regard to all relevant facts and circumstances, that obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit, unless it is established that granting that benefit in these circumstances would be in accordance with the object and purpose of the relevant provisions of the Covered Tax Agreement. 一、虽有被涵盖税收协定的任何规定,如果在考虑所有相关事实和情况的基础上,可以合理认定任何直接或间接带来被涵盖税收协定待遇的安排或交易的主要目的之一是获得该待遇,则不应将该待遇给予相关所得或财产,除非可以确认,在这些情形下给予该待遇符合被涵盖税收协定相关规定的宗旨和目的。
2. Paragraph 1 shall apply in place of or in the absence of provisions of a Covered Tax Agreement that deny all or part of the benefits that would otherwise be provided under the Covered Tax Agreement where the principal purpose or one of the principal purposes of any arrangement or transaction, or of any person concerned with an arrangement or transaction, was to obtain those benefits. 二、第一款应替代被涵盖税收协定的相关规定适用,或者在被涵盖税收协定无此类规定的情况下适用。相关规定用于明确,由于任何安排或交易,或与安排或交易相关的任何人,其主要目的或主要目的之一是获取被涵盖税收协定待遇,而拒绝给予本应按照被涵盖税收协定给予的全部或部分待遇。
3. A Party that has not made the reservation described in subparagraph a) of paragraph 15 may also choose to apply paragraph 4 with respect to its Covered Tax Agreements. 三、未就第十五款第(一)项所述内容作出保留的公约缔约方,也可选择将第四款适用于其被涵盖税收协定。
4. Where a benefit under a Covered Tax Agreement is denied to a person under provisions of the Covered Tax Agreement (as it may be modified by this Convention) that deny all or part of the benefits that would otherwise be provided under the Covered Tax Agreement where the principal purpose or one of the principal purposes of any arrangement or transaction, or of any person concerned with an arrangement or transaction, was to obtain those benefits, the competent authority of the Contracting Jurisdiction that would otherwise have granted this benefit shall nevertheless treat that person as being entitled to this benefit, or to different benefits with respect to a specific item of income or capital, if such competent authority, upon request from that person and after consideration of the relevant facts and circumstances, determines that such benefits would have been granted to that person in the absence of the transaction or arrangement. The competent authority of the Contracting Jurisdiction to which a request has been made under this paragraph by a resident of the other Contracting Jurisdiction shall consult with the competent authority of that other Contracting Jurisdiction before rejecting the request. 四、由于任何安排或交易,或与安排或交易相关的任何人,其主要目的或主要目的之一是获取被涵盖税收协定待遇,而拒绝给予本应给予的全部或部分待遇,如果根据被涵盖税收协定(可能被本公约修订)的上述规定,拒绝将被涵盖税收协定的某项待遇给予某人,则本该给予该项待遇的缔约管辖区一方主管当局,根据该人请求并经考虑相关事实和情况,确认在没有此类安排或交易的情况下应允许该人享受该项待遇,则仍应认为该人有权享受该待遇,或者可以就某项特定所得或财产享受其他待遇。接到上述请求的缔约管辖区一方主管当局应在与缔约管辖区另一方主管当局协商后,才能拒绝缔约管辖区另一方居民根据本款提交的请求。
5. Paragraph 4 shall apply to provisions of a Covered Tax Agreement (as it may be modified by this Convention) that deny all or part of the benefits that would otherwise be provided under the Covered Tax Agreement where the principal purpose or one of the principal purposes of any arrangement or transaction, or of any person concerned with an arrangement or transaction, was to obtain those benefits. 五、第四款应适用于被涵盖税收协定(可能被本公约修订)中的下述规定,即因任何安排或交易,或与安排或交易相关的任何人,其主要目的或主要目的之一是获取被涵盖税收协定待遇,而拒绝给予本该给予的全部或部分待遇的规定。
6. A Party may also choose to apply the provisions contained in paragraphs 8 through 13 (hereinafter referred to as the “Simplified Limitation on Benefits Provision”) to its Covered Tax Agreements by making the notification described in subparagraph c) of paragraph 17. The Simplified Limitation on Benefits Provision shall apply with respect to a Covered Tax Agreement only where all Contracting Jurisdictions have chosen to apply it. 六、公约缔约一方也可按照第十七款第(三)项作出通知,选择将第八款至第十三款(以下称“简化版利益限制条款”)所包含的规定适用于其被涵盖税收协定。简化版利益限制条款应仅在被涵盖税收协定的缔约管辖区各方都已选择适用时,才能适用于被涵盖税收协定。
7. In cases where some but not all of the Contracting Jurisdictions to a Covered Tax Agreement choose to apply the Simplified Limitation on Benefits Provision pursuant to paragraph 6, then, notwithstanding the provisions of that paragraph, the Simplified Limitation on Benefits Provision shall apply with respect to the granting of benefits under the Covered Tax Agreement: 七、如果被涵盖税收协定的所有缔约管辖区并未全部根据第六款选择适用简化版利益限制条款,则虽有第六款规定,简化版利益限制条款仍应按照下述方式适用于被涵盖税收协定有关给予协定待遇的规定:
a) by all Contracting Jurisdictions, if all of the Contracting Jurisdictions that do not choose pursuant to paragraph 6 to apply the Simplified Limitation on Benefits Provision agree to such application by choosing to apply this subparagraph and notifying the Depositary accordingly; or (一)适用于被涵盖税收协定所有缔约管辖区,条件是所有未根据第六款选择适用简化版利益限制条款的缔约管辖区,通过选择适用本项规定同意此种适用方式并相应地通知公约保存人;或者
b) only by the Contracting Jurisdictions that choose to apply the Simplified Limitation on Benefits Provision, if all of the Contracting Jurisdictions that do not choose pursuant to paragraph 6 to apply the Simplified Limitation on Benefits Provision agree to such application by choosing to apply this subparagraph and notifying the Depositary accordingly. (二)仅适用于选择适用简化版利益限制条款的缔约管辖区,条件是所有未根据第六款选择适用简化版利益限制条款的缔约管辖区,通过选择适用本项规定同意此种适用方式并相应地通知公约保存人。
Simplified Limitation on Benefits Provision 简化版利益限制条款
8. Except as otherwise provided in the Simplified Limitation on Benefits Provision, a resident of a Contracting Jurisdiction to a Covered Tax Agreement shall not be entitled to a benefit that would otherwise be accorded by the Covered Tax Agreement, other than a benefit under provisions of the Covered Tax Agreement: 八、除简化版利益限制条款另有规定外,被涵盖税收协定缔约管辖区一方居民应不能享受被涵盖税收协定本应给予的待遇,除非在给予该待遇时,该居民是第九款定义的“合格的人”。但是,被涵盖税收协定规定的下列待遇除外:
a) which determine the residence of a person other than an individual which is a resident of more than one Contracting Jurisdiction by reason of provisions of the Covered Tax Agreement that define a resident of a Contracting Jurisdiction; (一)根据被涵盖税收协定中定义缔约管辖区一方居民的规定,除个人以外的人构成缔约管辖区双方或多方居民时,确定该人居民身份的待遇;
b) which provide that a Contracting Jurisdiction will grant to an enterprise of that Contracting Jurisdiction a corresponding adjustment following an initial adjustment made by the other Contacting Jurisdiction, in accordance with the Covered Tax Agreement, to the amount of tax charged in the first-mentioned Contracting Jurisdiction on the profits of an associated enterprise; or (二)缔约管辖区一方在缔约管辖区另一方根据被涵盖税收协定的规定,对关联企业的利润在首先提及的缔约管辖区一方征税的部分作出初始调整后,给予该缔约管辖区一方企业相应调整的待遇;或者
c) which allow residents of a Contracting Jurisdiction to request that the competent authority of that Contracting Jurisdiction consider cases of taxation not in accordance with the Covered Tax Agreement, unless such resident is a “qualified person”, as defined in paragraph 9 at the time that the benefit would be accorded. (三)允许缔约管辖区一方居民请求该缔约管辖区主管当局考虑不符合被涵盖税收协定规定的征税案件的待遇。
9. A resident of a Contracting Jurisdiction to a Covered Tax Agreement shall be a qualified person at a time when a benefit would otherwise be accorded by the Covered Tax Agreement if, at that time, the resident is: 九、被涵盖税收协定的缔约管辖区一方居民,在被给予被涵盖税收协定待遇时,如果符合下列条件之一,则为合格的人:
a) an individual; (一)个人;
b) that Contracting Jurisdiction, or a political subdivision or local authority thereof, or an agency or instrumentality of any such Contracting Jurisdiction, political subdivision or local authority; (二)该缔约管辖区,其行政区或地方当局,或该缔约管辖区、其行政区或地方当局的任何组织或机构;
c) a company or other entity, if the principal class of its shares is regularly traded on one or more recognised stock exchanges; (三)公司或其他实体,条件是其主要种类的股票经常在一个或多个被认可的证券交易所交易;
d) a person, other than an individual, that: (四)除个人以外的人,条件是:
i) is a non-profit organisation of a type that is agreed to by the Contracting Jurisdictions through an exchange of diplomatic notes; or 1. 非营利组织,且属于经缔约管辖区各方互换外交照会同意的类型;或者
ii) is an entity or arrangement established in that Contracting Jurisdiction that is treated as a separate person under the taxation laws of that Contracting Jurisdiction and: 2. 在该缔约管辖区一方成立并按照该缔约管辖区的税法视为单独的人的实体或安排,并且:
A) that is established and operated exclusively or almost exclusively to administer or provide retirement benefits and ancillary or incidental benefits to individuals and that is regulated as such by that Contracting Jurisdiction or one of its political subdivisions or local authorities; or 1. 仅为或者几乎仅为个人管理或提供退休利益及其附属或附带利益而成立和经营,且由该缔约管辖区或其行政区或地方当局按此进行管理;或者
B) that is established and operated exclusively or almost exclusively to invest funds for the benefit of entities or arrangements referred to in subdivision A); 2. 仅为或者几乎仅为第(1)分目提及的实体或安排的利益从事基金投资的目的而成立和经营;
e) a person other than an individual, if, on at least half the days of a twelve-month period that includes the time when the benefit would otherwise be accorded, persons who are residents of that Contracting Jurisdiction and that are entitled to benefits of the Covered Tax Agreement under subparagraphs a) to d) own, directly or indirectly, at least 50 per cent of the shares of the person. (五)除个人以外的人,如果在包括本应给予待遇的时间在内的十二个月,作为该缔约管辖区一方居民且根据第(一)项至第(四)项有权享受被涵盖税收协定待遇的人,至少一半天数直接或间接拥有该人至少50%的股权。
10. a) A resident of a Contracting Jurisdiction to a Covered Tax Agreement will be entitled to benefits of the Covered Tax Agreement with respect to an item of income derived from the other Contracting Jurisdiction, regardless of whether the resident is a qualified person, if the resident is engaged in the active conduct of a business in the first-mentioned Contracting Jurisdiction, and the income derived from the other Contracting Jurisdiction emanates from, or is incidental to, that business. For purposes of the Simplified Limitation on Benefits Provision, the term “active conduct of a business” shall not include the following activities or any combination thereof: 十、(一)被涵盖税收协定的缔约管辖区一方居民,不论是否是合格的人,如果在该缔约管辖区一方从事积极经营活动,且其从缔约管辖区另一方取得的某项所得来源于或者附属于该经营活动,则该居民有权就来源于缔约管辖区另一方的此项所得享受被涵盖税收协定待遇。在简化版利益限制条款中,“从事积极经营活动”一语不包括下列活动或这些活动的任何组合:
i) operating as a holding company; 1. 作为控股公司经营;
ii) providing overall supervision or administration of a group of companies; 2. 为公司集团提供全面监督或管理;
iii) providing group financing (including cash pooling); or 3. 提供集团融资(包括资金池业务);或者
iv) making or managing investments, unless these activities are carried on by a bank, insurance company or registered securities dealer in the ordinary course of its business as such. 4.开展投资业务或者管理投资,但该活动由银行、保险公司或注册的证券交易商作为其常规经营活动开展的除外。
b) If a resident of a Contracting Jurisdiction to a Covered Tax Agreement derives an item of income from a business activity conducted by that resident in the other Contracting Jurisdiction, or derives an item of income arising in the other Contracting Jurisdiction from a connected person, the conditions described in subparagraph a) shall be considered to be satisfied with respect to such item only if the business activity carried on by the resident in the first-mentioned Contracting Jurisdiction to which the item is related is substantial in relation to the same activity or a complementary business activity carried on by the resident or such connected person in the other Contracting Jurisdiction. Whether a business activity is substantial for the purposes of this subparagraph shall be determined based on all the facts and circumstances. (二)如果被涵盖税收协定的缔约管辖区一方居民,从其在缔约管辖区另一方的经营活动中取得所得,或者从其高度关联方取得来源于缔约管辖区另一方的所得,则仅在该居民在缔约管辖区一方从事的与该所得相关的经营活动,对于该居民或该高度关联方在缔约管辖区另一方从事的相同活动或者补充性经营活动来说具有实质性的情况下,才应认为满足第(一)项所述条件。在本项中,应根据所有的事实和情况判定一项经营活动是否具有实质性。
c) For purposes of applying this paragraph, activities conducted by connected persons with respect to a resident of a Contracting Jurisdiction to a Covered Tax Agreement shall be deemed to be conducted by such resident. (三)在本款中,被涵盖税收协定缔约管辖区一方居民的高度关联方从事的活动,应被视为该居民从事的活动。
11. A resident of a Contracting Jurisdiction to a Covered Tax Agreement that is not a qualified person shall also be entitled to a benefit that would otherwise be accorded by the Covered Tax Agreement with respect to an item of income if, on at least half of the days of any twelve-month period that includes the time when the benefit would otherwise be accorded, persons that are equivalent beneficiaries own, directly or indirectly, at least 75 per cent of the beneficial interests of the resident. 十一、被涵盖税收协定的缔约管辖区一方居民即使不是合格的人,也应有权享受被涵盖税收协定给予某项所得的待遇,条件是在包括本应给予协定待遇的时间在内的任何十二个月,同等受益人至少一半天数直接或间接拥有该居民至少75%的受益权。
12. If a resident of a Contracting Jurisdiction to a Covered Tax Agreement is neither a qualified person pursuant to the provisions of paragraph 9, nor entitled to benefits under paragraph 10 or 11, the competent authority of the other Contracting Jurisdiction may, nevertheless, grant the benefits of the Covered Tax Agreement, or benefits with respect to a specific item of income, taking into account the object and purpose of the Covered Tax Agreement, but only if such resident demonstrates to the satisfaction of such competent authority that neither its establishment, acquisition or maintenance, nor the conduct of its operations, had as one of its principal purposes the obtaining of benefits under the Covered Tax Agreement. Before either granting or denying a request made under this paragraph by a resident of a Contracting Jurisdiction, the competent authority of the other Contracting Jurisdiction to which the request has been made shall consult with the competent authority of the first-mentioned Contracting Jurisdiction. 十二、如果被涵盖税收协定的缔约管辖区一方居民既不是第九款规定的合格的人,也不能根据第十款或第十一款享受协定待遇,缔约管辖区另一方主管当局在考虑被涵盖税收协定的宗旨和目的后,仍可给予其被涵盖税收协定待遇,或者就某项特定所得给予协定待遇,条件是该居民通过证明使该主管当局认可,其成立、并购或保有,或者其从事的业务,都不是以获得被涵盖税收协定待遇为主要目的之一。缔约管辖区一方的居民提出请求后,收到请求的缔约管辖区另一方主管当局应与首先提及的缔约管辖区一方主管当局协商,之后才能根据本款给予协定待遇或者拒绝请求。
13. For the purposes of the Simplified Limitation on Benefits Provision: 十三、在简化版利益限制条款中:
a) the term “recognised stock exchange” means: (一)“被认可的证券交易所”一语是指:
i) any stock exchange established and regulated as such under the laws of either Contracting Jurisdiction; and 1. 任何根据缔约管辖区一方的法律成立和管理的证券交易所;以及
ii) any other stock exchange agreed upon by the competent authorities of the Contracting Jurisdictions; 2. 缔约管辖区主管当局各方同意的任何其他证券交易所;
b) the term “principal class of shares” means the class or classes of shares of a company which represents the majority of the aggregate vote and value of the company or the class or classes of beneficial interests of an entity which represents in the aggregate a majority of the aggregate vote and value of the entity; (二)“主要种类的股票”一语是指,累计代表公司多数表决权和价值的一类或几类公司股票,或者累计代表多数表决权和价值的一类或几类受益权;
c) the term “equivalent beneficiary” means any person who would be entitled to benefits with respect to an item of income accorded by a Contracting Jurisdiction to a Covered Tax Agreement under the domestic law of that Contracting Jurisdiction, the Covered Tax Agreement or any other international instrument which are equivalent to, or more favourable than, benefits to be accorded to that item of income under the Covered Tax Agreement; for the purposes of determining whether a person is an equivalent beneficiary with respect to dividends, the person shall be deemed to hold the same capital of the company paying the dividends as such capital the company claiming the benefit with respect to the dividends holds; (三)“同等受益人”一语是指,根据被涵盖税收协定缔约管辖区一方国内法、被涵盖税收协定或任何其他国际文书,应就一项所得,由该被涵盖税收协定缔约管辖区一方给予其与被涵盖税收协定相同或更优惠待遇的任何人;为了确定一个人是否为股息的同等受益人,对于就股息要求享受协定待遇的公司所持有的财产,该人应被视为持有支付股息公司的相同财产。
d) with respect to entities that are not companies, the term “shares” means interests that are comparable to shares; (四)关于不是公司的实体,“股权”一语是指相当于股权的受益权。
e) two persons shall be “connected persons” if one owns, directly or indirectly, at least 50 per cent of the beneficial interest in the other (or, in the case of a company, at least 50 per cent of the aggregate vote and value of the company's shares) or another person owns, directly or indirectly, at least 50 per cent of the beneficial interest (or, in the case of a company, at least 50 per cent of the aggregate vote and value of the company's shares) in each person; in any case, a person shall be connected to another if, based on all the relevant facts and circumstances, one has control of the other or both are under the control of the same person or persons. (五)如果一人直接或间接拥有另一人至少50%的受益权(或者,在公司的情况下,拥有公司至少50%的表决权和股权价值),或者第三方直接或间接拥有其他两人每人至少50%的受益权(或者,在公司的情况下,拥有公司至少50%的表决权和股权价值),则该两个人应是“高度关联方”;如果基于所有相关事实和情形,认定一方控制另一方,或者双方被相同的人控制,则在任何情况下,该两个人应为高度关联方。
14. The Simplified Limitation on Benefits Provision shall apply in place of or in the absence of provisions of a Covered Tax Agreement that would limit the benefits of the Covered Tax Agreement (or that would limit benefits other than a benefit under the provisions of the Covered Tax Agreement relating to residence, associated enterprises or non-discrimination or a benefit that is not restricted solely to residents of a Contracting Jurisdiction) only to a resident that qualifies for such benefits by meeting one or more categorical tests. 十四、简化版利益限制条款应替代被涵盖税收协定的下述规定适用,或在没有相关规定的情形下适用。此类规定用于明确,享受被涵盖税收协定待遇(或者被涵盖税收协定中除有关居民、关联企业、非歧视待遇或并非仅限于缔约管辖区一方居民的待遇以外的协定待遇)的主体,仅限于通过一条或多条标准测试的合格的居民。
15. A Party may reserve the right: 十五、公约缔约一方可保留以下权利:
a) for paragraph 1 not to apply to its Covered Tax Agreements on the basis that it intends to adopt a combination of a detailed limitation on benefits provision and either rules to address conduit financing structures or a principal purpose test, thereby meeting the minimum standard for preventing treaty abuse under the OECD/G20 BEPS package; in such cases, the Contracting Jurisdictions shall endeavour to reach a mutually satisfactory solution which meets the minimum standard; (一)第一款不适用于其被涵盖税收协定,基于其拟采用详细版利益限制条款,以及应对导管融资架构的规则或主要目的测试,以达到OECD/G20BEPS应对措施中防止协定滥用的最低标准;在这种情况下,缔约管辖区各方应努力达成各方满意的解决方案,来达到最低标准。
b) for paragraph 1 (and paragraph 4, in the case of a Party that has chosen to apply that paragraph) not to apply to its Covered Tax Agreements that already contain provisions that deny all of the benefits that would otherwise be provided under the Covered Tax Agreement where the principal purpose or one of the principal purposes of any arrangement or transaction, or of any person concerned with an arrangement or transaction, was to obtain those benefits; (二)第一款(以及第四款,如果公约缔约一方已选择适用该款)不适用于已包含下述规定的被涵盖税收协定。此类规定用于明确,如果任何安排或交易,或者与一项安排或交易相关的任何人,其主要目的或主要目的之一是获得协定待遇,则拒绝给予本应根据被涵盖税收协定给予的全部待遇。
c) for the Simplified Limitation on Benefits Provision not to apply to its Covered Tax Agreements that already contain the provisions described in paragraph 14. (三)简化版利益限制条款不适用于已包含第十四款所述规定的被涵盖税收协定。
16. Except where the Simplified Limitation on Benefits Provision applies with respect to the granting of benefits under a Covered Tax Agreement by one or more Parties pursuant to paragraph 7, a Party that chooses pursuant to paragraph 6 to apply the Simplified Limitation on Benefits Provision may reserve the right for the entirety of this Article not to apply with respect to its Covered Tax Agreements for which one or more of the other Contracting Jurisdictions has not chosen to apply the Simplified Limitation on Benefits Provision. In such cases, the Contracting Jurisdictions shall endeavour to reach a mutually satisfactory solution which meets the minimum standard for preventing treaty abuse under the OECD/G20 BEPS package. 十六、除根据第七款规定,公约缔约一方或多方根据被涵盖税收协定适用简化版利益限制条款给予协定待遇的情况外,根据第六款选择适用简化版利益限制条款的公约缔约方可保留权利,使本条整体不适用于被涵盖税收协定。在缔约管辖区另一方或多方未选择适用简化版利益限制条款的情况下,缔约管辖区各方应通过努力达成各方满意的解决方案,来达到OECD/G20BEPS应对措施中防止协定滥用的最低标准。
17. a) Each Party that has not made the reservation described in subparagraph a) of paragraph 15 shall notify the Depositary of whether each of its Covered Tax Agreements that is not subject to a reservation described in subparagraph b) of paragraph 15 contains a provision described in paragraph 2, and if so, the article and paragraph number of each such provision. Where all Contracting Jurisdictions have made such a notification with respect to a provision of a Covered Tax Agreement, that provision shall be replaced by the provisions of paragraph 1 (and where applicable, paragraph 4). In other cases, paragraph 1 (and where applicable, paragraph 4) shall supersede the provisions of the Covered Tax Agreement only to the extent that those provisions are incompatible with paragraph 1 (and where applicable, paragraph 4). A Party making a notification under this subparagraph may also include a statement that while such Party accepts the application of paragraph 1 alone as an interim measure, it intends where possible to adopt a limitation on benefits provision, in addition to or in replacement of paragraph 1, through bilateral negotiation. 十七、(一)未就第十五款第(一)项所述内容作出保留的公约缔约各方,应通知公约保存人其各被涵盖税收协定中是否包含未根据第十五款第(二)项保留条款排除在外的第二款所述规定,如果包含的话,还应将各此类规定的条款序号通知公约保存人。如果被涵盖税收协定所有缔约管辖区均已就该协定规定作出此项通知,则由第一款(以及第四款,如适用)规定替代该规定。其他情况下,第一款(以及第四款,如适用)应仅替代被涵盖税收协定中与第一款(以及第四款,如适用)相冲突的规定。公约缔约一方根据本项作出的通知还可包括一项声明,即虽然该公约缔约方接受单独适用第一款作为临时措施,但在可能的情况下其将通过双边谈判采用利益限制条款以补充或者替代第一款。
b) Each Party that chooses to apply paragraph 4 shall notify the Depositary of its choice. Paragraph 4 shall apply to a Covered Tax Agreement only where all Contracting Jurisdictions have made such a notification. (二)选择适用第四款的公约缔约方,应将其选择通知公约保存人。第四款仅在被涵盖税收协定的所有缔约管辖区已作出通知的情况下适用于该被涵盖税收协定。
c) Each Party that chooses to apply the Simplified Limitation on Benefits Provision pursuant to paragraph 6 shall notify the Depositary of its choice. Unless such Party has made the reservation described in subparagraph c) of paragraph 15, such notification shall also include the list of its Covered Tax Agreements which contain a provision described in paragraph 14, as well as the article and paragraph number of each such provision. (三)根据第六款选择适用简化版利益限制条款的公约缔约方,应将其选择通知公约保存人。除非该公约缔约方已作出第十五款第(三)项所述保留,该通知还应包括一个清单,列明包含第十四款所述规定的被涵盖税收协定,以及此类规定的条款序号。
d) Each Party that does not choose to apply the Simplified Limitation on Benefits Provision pursuant to paragraph 6, but chooses to apply either subparagraph a) or b) of paragraph 7 shall notify the Depositary of its choice of subparagraph. Unless such Party has made the reservation described in subparagraph c) of paragraph 15, such notification shall also include the list of its Covered Tax Agreements which contain a provision described in paragraph 14, as well as the article and paragraph number of each such provision. (四)未根据第六款选择适用简化版利益限制条款,但选择适用第七款第(一)项或第(二)项的公约缔约方,应将其选择的项目通知公约保存人。除非该公约缔约方已作出第十五款第(三)项所述保留,该通知还应包括一个清单,列明包含第十四款所述规定的被涵盖税收协定,以及此类规定的条款序号。
e) Where all Contracting Jurisdictions have made a notification under subparagraph c) or d) with respect to a provision of a Covered Tax Agreement, that provision shall be replaced by the Simplified Limitation on Benefits Provision. In other cases, the Simplified Limitation on Benefits Provision shall supersede the provisions of the Covered Tax Agreement only to the extent that those provisions are incompatible with the Simplified Limitation on Benefits Provision. (五)如果被涵盖税收协定的所有缔约管辖区,均已根据第(三)项或第(四)项,就该协定的某项规定作出此项通知,则该规定应被简化版利益限制条款替代。在其他情况下,简化版利益限制条款应仅替代被涵盖税收协定中与简化版利益限制条款相冲突的规定。
Article 8 – Dividend Transfer Transactions   第八条享受股息低档税率的条件
1. Provisions of a Covered Tax Agreement that exempt dividends paid by a company which is a resident of a Contracting Jurisdiction from tax or that limit the rate at which such dividends may be taxed, provided that the beneficial owner or the recipient is a company which is a resident of the other Contracting Jurisdiction and which owns, holds or controls more than a certain amount of the capital, shares, stock, voting power, voting rights or similar ownership interests of the company paying the dividends, shall apply only if the ownership conditions described in those provisions are met throughout a 365 day period that includes the day of the payment of the dividends (for the purpose of computing that period, no account shall be taken of changes of ownership that would directly result from a corporate reorganisation, such as a merger or divisive reorganisation, of the company that holds the shares or that pays the dividends). 一、如果被涵盖税收协定规定,作为缔约管辖区一方居民的公司所支付的股息,在受益所有人或者收款人是缔约管辖区另一方居民的公司,且该公司拥有、持有或控制支付股息的公司超过一定数量的资本、股权、股票、表决权或类似所有者权益的情况下,给予免税或者限制对该股息的征税税率,则该规定应仅在包括支付股息日在内的365天期间(为计算该期间,直接导致公司重组的持股变化情况的时间不计算在内,比如对持股公司或支付股息公司的合并或分立重组)都符合上述规定所述的所有权条件的情况下适用。
2. The minimum holding period provided in paragraph 1 shall apply in place of or in the absence of a minimum holding period in provisions of a Covered Tax Agreement described in paragraph 1. 二、第一款规定的最低持有期限应替代第一款所述的被涵盖税收协定规定中的最低持有期限,或者在没有最低持有期限的情形下适用。
3. A Party may reserve the right: 三、公约缔约一方可保留以下权利:
a) for the entirety of this Article not to apply to its Covered Tax Agreements; (一)本条整体不适用于其被涵盖税收协定;
b) for the entirety of this Article not to apply to its Covered Tax Agreements to the extent that the provisions described in paragraph 1 already include: (二)本条整体不适用于其被涵盖税收协定,如果第一款所述规定已经包括:
i) a minimum holding period; 1. 最低持有期限;
ii) a minimum holding period shorter than a 365 day period; or 2. 天的最低持有期限;或
iii) a minimum holding period longer than a 365 day period. 3. 天的最低持有期限。
4. Each Party that has not made a reservation described in subparagraph a) of paragraph 3 shall notify the Depositary of whether each of its Covered Tax Agreements contains a provision described in paragraph 1 that is not subject to a reservation described in subparagraph b) of paragraph 3, and if so, the article and paragraph number of each such provision. Paragraph 1 shall apply with respect to a provision of a Covered Tax Agreement only where all Contracting Jurisdictions have made such a notification with respect to that provision. 四、未就第三款第(一)项所述内容作出保留的公约缔约方,应通知公约保存人其各被涵盖税收协定中是否包含未根据第三款第(二)项保留条款排除在外的第一款所述规定,如果包括的话,还应将各此类规定的条款序号通知公约保存人。如果被涵盖税收协定的所有缔约管辖区均已就该协定中的某项规定作出该项通知,则第一款应适用于该被涵盖税收协定的规定。
Article 9 – Capital Gains from Alienation of Shares or Interests of Entities Deriving their Value Principally from Immovable Property   第九条转让其价值主要来自于不动产的实体的股权或权益取得的财产收益
1. Provisions of a Covered Tax Agreement providing that gains derived by a resident of a Contracting Jurisdiction from the alienation of shares or other rights of participation in an entity may be taxed in the other Contracting Jurisdiction provided that these shares or rights derived more than a certain part of their value from immovable property (real property) situated in that other Contracting Jurisdiction (or provided that more than a certain part of the property of the entity consists of such immovable property (real property)): 一、如果被涵盖税收协定规定,缔约管辖区一方居民从转让其所参与实体的股权或其他权益取得的收益,在这些股权或权益的超过一定比例的价值来自于位于缔约管辖区另一方的不动产(或者该实体超过一定比例的财产由不动产组成)的情况下,可以在该缔约管辖区另一方征税,则该规定:
a) shall apply if the relevant value threshold is met at any time during the 365 days preceding the alienation; and (一)只要转让前365天内的任一时间可达到相关价值部分的标准,即可适用;
b) shall apply to shares or comparable interests, such as interests in a partnership or trust (to the extent that such shares or interests are not already covered) in addition to any shares or rights already covered by the provisions. (二)除适用于规定已经涵盖的任何股权或权益以外,还应适用于诸如合伙企业或信托权益(如果尚未涵盖此类股权或权益)的股权或类似权益。
2. The period provided in subparagraph a) of paragraph 1 shall apply in place of or in the absence of a time period for determining whether the relevant value threshold in provisions of a Covered Tax Agreement described in paragraph 1 was met. 二、第一款第(一)项规定的期限应替代用来确定第一款所述被涵盖税收协定规定中的相关价值标准是否符合的时间期限,或在没有此类时间期限的情形下适用。
3. A Party may also choose to apply paragraph 4 with respect to its Covered Tax Agreements. 三、公约缔约方也可选择第四款适用于其被涵盖税收协定。
4. For purposes of a Covered Tax Agreement, gains derived by a resident of a Contracting Jurisdiction from the alienation of shares or comparable interests, such as interests in a partnership or trust, may be taxed in the other Contracting Jurisdiction if, at any time during the 365 days preceding the alienation, these shares or comparable interests derived more than 50 per cent of their value directly or indirectly from immovable property (real property) situated in that other Contracting Jurisdiction. 四、在被涵盖税收协定中,缔约管辖区一方居民转让股权或类似权益(比如合伙企业或信托中的权益)取得的收益,如果转让前365天内的任一时间,这些股权或类似权益超过50%的价值直接或间接来自于位于缔约管辖区另一方的不动产,则该收益可在该缔约管辖区另一方征税。
5. Paragraph 4 shall apply in place of or in the absence of provisions of a Covered Tax Agreement providing that gains derived by a resident of a Contracting Jurisdiction from the alienation of shares or other rights of participation in an entity may be taxed in the other Contracting Jurisdiction provided that these shares or rights derived more than a certain part of their value from immovable property (real property) situated in that other Contracting Jurisdiction, or provided that more than a certain part of the property of the entity consists of such immovable property (real property). 五、第四款应替代被涵盖税收协定的相关规定适用,或在没有此类规定的情形下适用。相关规定用于明确,缔约管辖区一方居民转让其所参与实体的股权或其他权益取得的收益,如果这些股权或权益超过一定比例的价值来自于位于缔约管辖区另一方的不动产,或者如果该实体的财产的一定比例由该不动产构成,可在该缔约管辖区另一方征税。
6. A Party may reserve the right: 六、公约缔约方可保留以下权利:
a) for paragraph 1 not to apply to its Covered Tax Agreements; (一)第一款不适用于其被涵盖税收协定;
b) for subparagraph a) of paragraph 1 not to apply to its Covered Tax Agreements; (二)第一款第(一)项不适用于其被涵盖税收协定;
c) for subparagraph b) of paragraph 1 not to apply to its Covered Tax Agreements; (三)第一款第(二)项不适用于其被涵盖税收协定;
d) for subparagraph a) of paragraph 1 not to apply to its Covered Tax Agreements that already contain a provision of the type described in paragraph 1 that includes a period for determining whether the relevant value threshold was met; (四)第一款第(一)项不适用于其被涵盖税收协定,如果该被涵盖税收协定已包含第一款所述之类的规定,纳入了用于确定是否达到相关价值标准的期限;
e) for subparagraph b) of paragraph 1 not to apply to its Covered Tax Agreements that already contain a provision of the type described in paragraph 1 that applies to the alienation of interests other than shares; (五)第一款第(二)项不适用于其被涵盖税收协定,如果该被涵盖税收协定已包含第一款所述之类的规定,适用于转让除股权以外的权益;
f) for paragraph 4 not to apply to its Covered Tax Agreements that already contain the provisions described in paragraph 5. (六)第四款不适用于其被涵盖税收协定,如果该被涵盖税收协定已包含第五款所述规定。
7. Each Party that has not made the reservation described in subparagraph a) of paragraph 6 shall notify the Depositary of whether each of its Covered Tax Agreements contains a provision described in paragraph 1, and if so, the article and paragraph number of each such provision. Paragraph 1 shall apply with respect to a provision of a Covered Tax Agreement only where all Contracting Jurisdictions have made a notification with respect to that provision. 七、未作出第六款第(一)项所述保留的公约缔约方,应通知公约保存人其每个被涵盖税收协定是否包含第一款所述规定,如果包括的话,还应通知每个此类规定的条款序号。第一款仅在被涵盖税收协定所有缔约管辖区均已就该规定作出通知的情况下,适用于该被涵盖税收协定的规定。
8. Each Party that chooses to apply paragraph 4 shall notify the Depositary of its choice. Paragraph 4 shall apply to a Covered Tax Agreement only where all Contracting Jurisdictions have made such a notification. In such case, paragraph 1 shall not apply with respect to that Covered Tax Agreement. In the case of a Party that has not made the reservation described in subparagraph f) of paragraph 6 and has made the reservation described in subparagraph a) of paragraph 6, such notification shall also include the list of its Covered Tax Agreements which contain a provision described in paragraph 5, as well as the article and paragraph number of each such provision. Where all Contracting Jurisdictions have made a notification with respect to a provision of a Covered Tax Agreement under this paragraph or paragraph 7, that provision shall be replaced by the provisions of paragraph 4. In other cases, paragraph 4 shall supersede the provisions of the Covered Tax Agreement only to the extent that those provisions are incompatible with paragraph 4. 八、选择适用第四款的公约缔约方应将其选择通知公约保存人。第四款应仅在被涵盖税收协定所有缔约管辖区均已作出该项通知的情况下,适用于该被涵盖税收协定。这种情况下,第一款应不适用于该被涵盖税收协定。如果公约缔约一方未作出第六款第(六)项所述保留,而已作出第六款第(一)项所述保留,该通知还应包括其包含第五款所述规定的被涵盖税收协定清单,以及此类规定的条款序号。如果被涵盖税收协定的所有缔约管辖区均已根据本款或第七款就该协定的某项规定作出此项通知,上述规定应被第四款的规定替代。在其他情况下,第四款应仅替代被涵盖税收协定中与第四款相冲突的规定。
Article 10 – Anti-abuse Rule for Permanent Establishments Situated in Third Jurisdictions   第十条针对位于第三方管辖区的常设机构的反滥用规定
1. Where: 一、如果:
a) an enterprise of a Contracting Jurisdiction to a Covered Tax Agreement derives income from the other Contracting Jurisdiction and the first-mentioned Contracting Jurisdiction treats such income as attributable to a permanent establishment of the enterprise situated in a third jurisdiction; and (一)被涵盖税收协定缔约管辖区一方的企业从缔约管辖区另一方取得所得,且首先提及的缔约管辖区一方把该所得视为归属于企业位于第三方管辖区的常设机构的所得;并且
b) the profits attributable to that permanent establishment are exempt from tax in the first- mentioned Contracting Jurisdiction, (二)归属于该常设机构的利润在首先提及的缔约管辖区一方免税,
the benefits of the Covered Tax Agreement shall not apply to any item of income on which the tax in the third jurisdiction is less than 60 per cent of the tax that would be imposed in the first-mentioned Contracting Jurisdiction on that item of income if that permanent establishment were situated in the first- mentioned Contracting Jurisdiction. In such a case, any income to which the provisions of this paragraph apply shall remain taxable according to the domestic law of the other Contracting Jurisdiction, notwithstanding any other provisions of the Covered Tax Agreement. 则被涵盖税收协定待遇不应适用于任何一项所得,条件是第三方管辖区对该所得的征税,少于首先提及的缔约管辖区一方在假设常设机构位于该缔约管辖区一方的情况下对其就该所得征税的60%。这种情况下,尽管有被涵盖税收协定的其他规定,本款规定适用的任何所得,仍应按照缔约管辖区另一方国内法的规定征税。
2. Paragraph 1 shall not apply if the income derived from the other Contracting Jurisdiction described in paragraph 1 is derived in connection with or is incidental to the active conduct of a business carried on through the permanent establishment (other than the business of making, managing or simply holding investments for the enterprise's own account, unless these activities are banking, insurance or securities activities carried on by a bank, insurance enterprise or registered securities dealer, respectively). 二、如果从缔约管辖区另一方取得的第一款所述的所得,与通过该常设机构进行的积极经营活动相关或附属于该活动(不包括为企业本身开展投资、管理投资,或者仅仅持有投资的活动,除非是银行、保险企业或注册的证券交易商分别开展的银行、保险或证券活动),则第一款应不适用。
3. If benefits under a Covered Tax Agreement are denied pursuant to paragraph 1 with respect to an item of income derived by a resident of a Contracting Jurisdiction, the competent authority of the other Contracting Jurisdiction may, nevertheless, grant these benefits with respect to that item of income if, in response to a request by such resident, such competent authority determines that granting such benefits is justified in light of the reasons such resident did not satisfy the requirements of paragraphs 1 and 2. The competent authority of the Contracting Jurisdiction to which a request has been made under the preceding sentence by a resident of the other Contracting Jurisdiction shall consult with the competent authority of that other Contracting Jurisdiction before either granting or denying the request. 三、如果根据第一款,缔约管辖区一方居民取得的一项所得被拒绝给予被涵盖税收协定待遇,在该居民请求下,缔约管辖区另一方主管当局基于该居民未满足第一款和第二款规定的原因,认为给予相关协定待遇具有合理性,仍可就该所得给予这些待遇。缔约管辖区一方主管当局根据前述规定收到缔约管辖区另一方居民的请求后,在给予协定待遇或拒绝请求前,应与该缔约管辖区另一方主管当局商议。
4. Paragraphs 1 through 3 shall apply in place of or in the absence of provisions of a Covered Tax Agreement that deny or limit benefits that would otherwise be granted to an enterprise of a Contracting Jurisdiction which derives income from the other Contracting Jurisdiction that is attributable to a permanent establishment of the enterprise situated in a third jurisdiction.
......
 四、第一款至第三款应替代被涵盖税收协定下述相关规定适用,或在没有此类规定的情形下适用。此类规定用于明确,对于缔约管辖区一方企业从缔约管辖区另一方取得但归属于该企业位于第三方管辖区的常设机构的所得,应拒绝或限制本应给予的协定待遇。
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