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BỘ NGOẠI GIAO
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CỘNG HÒA XÃ HỘI
CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
11/2019/TB-LPQT
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Hà Nội, ngày 19
tháng 3 năm 2019
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THÔNG BÁO
VỀ
VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại Điều 56 của Luật
Điều ước quốc tế năm 2016, Bộ Ngoại giao trân trọng thông báo:
Hiệp định giữa Chính phủ nước Cộng hòa xã hội chủ
nghĩa Việt Nam và Chính phủ Vương quốc Cam-pu-chia về tránh đánh thuế hai lần
và ngăn ngừa việc trốn lậu thuế đối với các loại thuế đánh vào thu nhập, ký
ngày 31 tháng 3 năm 2018, tại Hà Nội, có hiệu lực từ ngày 20 tháng 02 năm 2019.
Bộ Ngoại giao trân trọng gửi bản sao Hiệp định theo
quy định tại Điều 59 của Luật nêu trên./.
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TL. BỘ TRƯỞNG
VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
Lê Thị Tuyết Mai
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AGREEMENT BETWEEN
THE
GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM AND THE GOVERNMENT OF THE
KINGDOM OF CAMBODIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF
FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the Socialist Republic of Viet
Nam and the Government of the Kingdom of Cambodia, desiring to conclude an
Agreement for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income,
Have agreed as follows:
Article
1
Persons
Covered
This Agreement shall apply to persons who are
residents of one or both of the Contracting States,
Article
2
Taxes
Covered
1. This Agreement shall apply to taxes on income imposed
on behalf of a Contracting State or of its local authorities, irrespective of
the manner in which they are levied.
2. There shall be regarded as taxes on income all
taxes imposed on total income, or on elements of income, including taxes on
gains from the alienation of movable or immovable property, taxes on the total
amounts of wages or salaries paid by enterprises.
3. The existing taxes to which the Agreement shall
apply are in particular:
(a) in Cambodia:
(i) Tax on Profit including Withholding Tax,
Additional Profit Tax on Dividend Distribution and Capital Gains Tax; and
(ii) Tax on Salary;
(hereinafter referred to as "Cambodian
tax"); and
(b) in Viet Nam:
(i) the personal income tax;
(ii) the business income tax; and
(iii) the extra petroleum income tax;
(hereinafter referred to as “Vietnamese
tax”).
The Agreement shall apply also to any identical or
substantially similar taxes that are imposed after the date of signature of the
Agreement in addition to, or in place of, the existing taxes. The competent
authorities of the Contracting States shall notify each other of any
significant changes that have been made in their respective taxation laws.
Article
3
General
Definitions
1. For the purposes of this Agreement, unless the
context otherwise requires;
(a) The terms “a Contracting State” and “the other
Contracting State” mean Cambodia or Viet Nam as the context requires;
(b) The term “Cambodia” means the territory of the
Kingdom of Cambodia, as well as those maritime areas, including the seabed and subsoil
adjacent to the outer limits of the territorial sea over which the Kingdom of
Cambodia exercises, in accordance with international law, sovereign rights or
jurisdiction;
(c) The term “Viet Nam” means the Socialist
Republic of Viet Nam; when used in a geographical sense, it means its land
territory, islands, internal waters, territorial sea and airspace above them,
the maritime areas beyond territorial sea including seabed and subsoil thereof
over which the Socialist Republic of Viet Nam exercises sovereignty, sovereign
rights and jurisdiction in accordance with national legislation and
international law;
(d) The term “person” includes an individual, a
company and any other body of persons;
(e) The term “company” means any body corporate or
any entity that is treated as a body corporate for tax purposes;
(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, or by a rail or road vehicle, or by
a boat, operated by an enterprise, that has its place of registration
(incorporation) in a Contracting State, except when the ship, aircraft, rail or
road vehicle or boat is operated solely between places in the other Contracting
Stale;
(h) The term "competent authority" means:
(i) In the case of Cambodia, the Minister of
Economy and Finance or his authorised representative; and
(ii) In the case of Viet Nam, the Minister of
Finance or his authorised representative; and
(i) The term “national”, in relation to a
Contracting State, means;
(i) any individual possessing the nationality of that
Contracting State; and
(ii) any legal person, partnership or association
deriving its status as such from the laws in force in that Contracting State.
2. As regards the application of the Agreement at
any time by a Contracting State, any term not defined therein shall, unless the
context otherwise requires, have the meaning that it has at that time under the
law of that State for the purposes of the taxes to which the Agreement applies,
any meaning under the applicable tax laws of that State prevailing over a
meaning given to the term under other laws of that State.
Article
4
Resident
1. For the purposes of this Agreement, the term
“resident of a Contracting State” means any person who, under the laws of that
State, is liable to tax therein by reason of his domicile, residence, place of
incorporation, place of registration, place of management, principal place of
business or any other criterion of a similar nature, and also includes that
State or any local authorities 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.
2. Where by reason of the provisions of paragraph 1
an individual is a resident of both Contracting States, then his status shall
be determined as follows:
(a) He shall be deemed to be a resident only of the
State in which he has a permanent home available to him; if he has a permanent
home available to him in both States, he shall be deemed to be a resident only
of the State with which his personal and economic relations are closer (centre
of vital interests);
(b) If the State in which he has his centre of
vital interests cannot be determined, or if he has not a permanent home
available to him in either State, he shall be deemed to be a resident only of
the State in which he has an habitual abode;
(c) If he has an habitual abode in both States or
in neither of them, he shall be deemed to be a resident only of the State of
which he is a national;
(d) If he is a national of both States or of
neither of them, the competent authorities of the Contracting States shall
settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1
a person other than an individual is a resident of both Contracting States,
then it shall be deemed to be a resident only of the State in which its place
of registration (incorporation) is situated.
Article
5
Permanent
Establishment
1. For the purposes of this Agreement, the term
"permanent establishment" means a fixed place of business through
which the business of an enterprise is wholly or partly carried on.
2. The term “permanent establishment” includes
especially:
(a) A place of management;
(b) A branch;
(c) An office;
(d) A factory;
(e) A workshop;
(f) A warehouse;
(g) A mine, an oil or gas well, a quarry or any
other place of extraction of natural resources; and
(h) A farm or plantation.
3. The term “permanent establishment” also
encompasses;
(a) A building site, a construction, assembly or
installation project or supervisory activities in connection therewith, but
only if such site, project or activities last more than 183 days;
(b) The furnishing of services, including
consultancy services, by an enterprise through employees or other personnel
engaged by the enterprise for such purpose, but only if activities of that
nature continue (for the same or a connected project) within a Contracting
State for a period or periods aggregating more than 183 days within any
12-month period;
(c) The carrying on of activities (including the
operation of substantial equipment) in the other Contracting State for the
exploration or for exploitation of natural resources for a period or periods
exceeding in the aggregate 90 days in any 12-month period; and
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 or display 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 or
display:
(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; and
(e) The maintenance of a fixed place of business
solely for the purpose of carrying on, for the enterprise, any other activity
of a preparatory or auxiliary character.
5. Notwithstanding the provisions of paragraphs 1
and 2, where a person-other than an agent of an independent status to whom
paragraph 7 applies-is acting in a Contracting State on behalf of an enterprise
of the other Contracting State, that enterprise shall be deemed to have a
permanent establishment in the first-mentioned Contracting State in respect of
any activities which that person undertakes for the enterprise, if such a
person:
(a) Has and habitually exercises in that State an
authority to conclude contracts in the name of 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;
or
(b) Has no such authority, but habitually maintains
in the first-mentioned State a stock of goods or merchandise from which he
regularly delivers goods or merchandise on behalf of the enterprise; or
(c) Habitually secures orders in the
first-mentioned State wholly or almost wholly for the enterprise itself or for
the enterprise and other enterprises which are controlled by it or have a
controlling interest in it.
6. Notwithstanding the preceding provisions of this
Article, an insurance enterprise of a Contracting State shall, except in regard
to re-insurance, be deemed to have a permanent establishment in the other
Contracting State if it collects premiums in the territory of that other State
or insures risks situated therein through a person other than an agent of an
independent status to whom paragraph 7 applies.
7. An enterprise of a Contracting State shall not
be deemed to have a permanent establishment in the other Contracting State merely
because it carries on business in that other Contracting 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.
However, when the activities of such an agent are devoted wholly or almost
wholly on behalf of that enterprise, and conditions are made or imposed between
that enterprise and the agent in their commercial and financial relations which
differ from those which would have been made between independent enterprises,
he will not be considered an agent of an independent status within the meaning
of this paragraph.
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.
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 Contracting
State.
2. The term "immovable property" shall
have the meaning which it has under the law of the Contracting State in which
the property in question is situated. The term shall in any case include
property accessory to immovable property, livestock and equipment used in
agriculture and forestry, rights to which the provisions of general law
respecting landed property apply, usufruct of immovable property and rights to
variable or fixed payments as consideration for the working of, or the right to
work, mineral deposits, sources and other natural resources; ships, boats, rail
or road vehicle, and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall also apply
to income derived from the direct use, letting, or use in any other form of
immovable property.
4. The provisions of paragraphs 1 and 3 shall also
apply to the income from immovable property of an enterprise and to income from
immovable property used for the performance of independent personal services.
Article
7
Business
Profits
1. The profits of an enterprise of a Contracting
State shall be taxable only in that State unless the enterprise carries on
business in the other Contracting State through a permanent establishment
situated therein. If the enterprise carries on business as aforesaid, the profits
of the enterprise may be taxed in the other Contracting State but only so much
of them as is attributable to; (a) that permanent establishment; (b) sales in
that other Contracting State of goods or merchandise of the same or similar
kind as those sold through that permanent establishment; or (c) other business
activities carried on in that other Contracting State of the same or similar
kind as those effected through 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 business 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
towards 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, for specific services performed or for
management, or, except in the case of a banking enterprise, by way of interest
on moneys lent to the permanent establishment. Likewise, no account shall be
taken, in the determination of the profits of a permanent establishment, for
amounts charged (otherwise than towards 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 for specific
services performed or for management, or, except in the case of a banking
enterprise, by way of interest on moneys lent to the head office of the
enterprise or any of its other offices.
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 profit of the
enterprise to its various parts, nothing in paragraph 2 shall preclude such
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. 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.
6. Nothing in this Article shall affect the
application of any law of a Contracting State relating to tax imposed on income
from insurance, other than re-insurance, with non-resident insurers, provided
that the relevant law enforces in either Contracting State in respect of
insurance situated in that State.
7. Where profits include items of income which are
dealt with separately in other Articles of this Agreement, then the provisions
of those Articles shall not be affected by the provisions of this Article.
Article
8
International
Transport
1. Profits derived from the operation of aircraft in
international traffic shall be taxable only in the Contracting State in which
the place of registration (incorporation) of the enterprise is situated.
2. Profits derived by an enterprise of a
Contracting State from the operation in international traffic of ships, rail or
road vehicles, or by boats, may be taxed in the other Contracting State, but
the tax imposed in that other Contracting State shall be reduced by an amount
equal to 50 per cent thereof.
3. The provisions of paragraphs 1 and 2 shall 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 the reason of those conditions, have 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 make an appropriate adjustment to the
amount of the tax charged therein on those profits. In determining such
adjustment, due regard shall be had to the other provisions of this Agreement
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 a resident
of a Contracting State to a resident of the other Contracting State may be
taxed in that other Contracting State.
2. However, 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, but if the beneficial owner of the
dividends is a resident of the other Contracting State, the tax so charged
shall not exceed 10 per cent of the gross amount of the dividends.
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, mining shares, founders’ shares or other
rights, not being debt claims, participating in profits, as well as income from
other corporate 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 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 Contracting 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 15, 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 Contracting State may not impose any tax on the dividends paid by
the company, except in so far as such dividends are paid to a resident of that
other Contracting State or in so far 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 Contracting 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 Contracting 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
Contracting Stale.
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 10 per cent of the gross
amount of the interest.
3. Notwithstanding the provision of paragraph 2,
interest arising in a Contracting State and paid to the recipient of other
Contracting State shall be exempt in the first-mentioned State if the
beneficial owner:
(a) is the Government or the central bank or any
local authorities of that other Contracting State, or any entities thereof; or
(b) is a bank or financial institution of which
more than 50 per cent of the capital is held by that Government or any local
authorities of that other Contracting State, or any entities thereof.
For the purpose of this paragraph, the term “central
bank” means:
a. In case of Cambodia, the National Bank of
Cambodia
b. In case of Viet Nam, the State Bank of Viet Nam
4. The term “interest” as used in this Article
means income from debt claims of every kind, whether or not secured by mortgage
and whether or not carrying a right to participate in the debtor’s profits, and
in particular, income from government securities and income from bonds or
debentures, including premiums and prizes attaching to such securities, bonds
or debentures. Penalty charges for late payment shall not be regarded as
interest for the purpose of this Article.
5. The provisions of paragraphs 1 and 2 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 Contracting 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 (a) such permanent establishment
or fixed base, or with (b) business activities referred to in subparagraph (c)
of paragraph 1 of Article 7. In such cases the provisions of Article 7 or
Article 15, as the case may be, shall apply.
6. Interest shall be deemed to arise in a
Contracting State when the payer is that State itself, a local authority or
entity thereof, or a resident of that State. Where, however, the person paying
the interest, whether he is a resident of a Contracting Stale 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.
7. 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 Agreement.
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
Contracting 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 10 per cent of the gross
amount of the royalties.
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 cinematograph films, or films or tapes used for radio or television
broadcasting, any patent, trade mark, design or model, plan, secret formula or
process, or for the use of, or the right to use, industrial, commercial, or
scientific equipment, or for information concerning industrial, commercial or
scientific experience.
4. The provisions of paragraphs 1 and 2 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 Contracting 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 (a) such permanent
establishment or fixed base, or with (b) business activities referred to in
subparagraph (c) of paragraph 1 of Article 7. In such cases the provisions of
Article 7 or Article 15, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a
Contracting State when the payer is that State itself, a local authority or
entity thereof, or 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 liability 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 Agreement.
Article
13
Fees for Technical Services
1. Fees for technical services arising in a
Contracting State and paid to a resident of the other Contracting State may be
taxed in that other Contracting State.
2. However, fees for technical services may also be
taxed in the Contracting State in which they arise, and according to the laws
of that State, but if the recipient is the beneficial owner of the fees for
technical services, the tax so charged shall not exceed 10 per cent of the
gross amounts of the fees for technical services.
3. The term “fees for technical services” as used
in this Article means payments of any kind to any person, other than to an
employee of the person making the payments, in consideration for any services
of a technical, managerial or consultancy nature, but does not include payments
for services to which Article 15 of this Agreement applies.
4. The provisions of paragraphs 1 and 2 of this
Article shall not apply if the beneficial owner of the fees for technical
services, being a resident of a Contracting State, carries on business in the
other Contracting State in which the fees for technical services arise through
a permanent establishment situated therein, and the fees for technical services
are effectively connected with (a) such permanent establishment, or with (b)
business activities referred to in subparagraph (c) of paragraph 1 of Article 7
(Business Profits). In such case, the provisions or Article 7 shall apply.
5. Fees for technical services shall be deemed to
arise in a Contracting State when the payer is that State itself, a local
authority or entity thereof, or a resident of that State. Where, however, the
person paying the fees for technical services, 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 fees for
technical services was incurred, and such fees for technical services are home
by such permanent establishment or fixed base, then such fees for technical
services shall be deemed to arise in the Contracting 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 fees for technical services paid exceeds, for
whatever reason, 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
Agreement.
Article
14
Capital Gains
1. Gains derived by a resident of a Contracting
State from the alienation of immovable property referred to in Article 6 and
situated in the other Contracting State may be taxed in that other State.
2. Gains from the alienation of movable properly
forming part of the business property of a permanent establishment which 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 fixed
base, may be taxed in that other State.
3. Gains from the alienation of ships or aircraft
operated in international traffic, or rail or road vehicle, or boats engaged in
inland waterways transport or movable property pertaining to the operation of
such ships, aircraft, or rail or road vehicle, or boats, shall be taxable only
in the Contracting State in which the place of registration (incorporation) of
the enterprise is situated.
4. Gains from the alienation of shares of the
capital stock of a company, or of an interest in a partnership, trust or
estate, the property of which consist directly or indirectly principally of
immovable property situated in the other Contracting State, may be taxed in
that other State. For the purposes of this paragraph, “principally” in relation
to ownership of immovable property means the value of such immovable property
exceeding 30 per cent of the aggregate value of all assets owned by the
company, partnership, trust or estate.
5. Gains from the alienation of any properly other
than that referred to in paragraphs 1, 2, 3 and 4 shall be taxable only in the
Contracting State of which the alienator is a resident.
Article
15
Independent Personal Services
1. Subject to the provisions of Article 13, income
derived by an individual who is a resident of a Contracting State in respect of
professional services or other activities of an independent character shall be
taxable only in that State except in the following circumstances, when such
income may also be taxed in the other Contracting State:
(a) If he has a fixed base regularly available to
him in the other Contracting State for the purpose of performing his
activities; in that case, only so much of the income as is attributable to that
fixed base may be taxed in that other Contracting State; or
(b) If his stay in the other Contracting State is
for a period or periods amounting to or exceeding in the aggregate 183 days in
any 12-month period commencing or ending in the fiscal year concerned; in that
case, only so much of the income as is derived from his activities performed in
that other Contracting State may be taxed in that other Contracting 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
16
Dependent Personal Services
1. Subject to the provisions of Articles 17, 19, 20
and 21, salaries, wages and other similar remuneration derived by a resident of
a Contracting State in respect of an employment shall be taxable only in that
State unless the employment is exercised in the other Contracting State. If the
employment is so exercised, such remuneration as is derived therefrom may be
taxed in that other Contracting 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
Contracting State for a period or periods not exceeding in the aggregate 183
days in any 12-month period commencing or ending in the fiscal year concerned;
and
(b) The remuneration is paid by, or on behalf of,
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 employer has in the other State.
3. Notwithstanding the preceding provisions of this
Article, remuneration derived in respect of an employment exercised aboard a
ship or aircraft or a rail or road vehicle, or aboard a boat, operated in
international traffic, shall be taxable only in the Contracting State in which
the place of registration (incorporation) of the enterprise is situated.
Article
17
Directors’ Fees and Remuneration of Top-Level Managerial
Officials
1. 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 of a company which is a resident of the other Contracting
State may be taxed in that other Contracting State.
2. Salaries, wages and other similar remuneration
derived by a resident of a Contracting State in his capacity as an official in
a top-level managerial position of a company which is a resident of the other
Contracting State may be taxed in that other Contracting State.
Article
18
Artistes and Sportspersons
1. Notwithstanding the provisions of Articles 15
and 16, 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 sportsperson, from his personal activities as such exercised in the
other Contracting State, may be taxed in that other Contracting State.
2. Where income in respect of personal activities
exercised by an entertainer or a sportsperson in his capacity as such accrues
not to the entertainer or sportsperson himself but to another person, that
income may, notwithstanding the provisions of Articles 7, 15 and 16, be taxed
in the Contracting State in which the activities of the entertainer or
sportsperson are exercised.
3. Notwithstanding the provision of paragraph 1,
income derived by entertainers or sportspersons who are residents of a
Contracting State from activities in the other Contracting State under a plan
of cultural exchange between the Government of both Contracting States, whether
funded wholly or partially by either Government, shall be exempt from tax in
that other Contracting State.
Article
19
Pensions and Social Security Payments
1. Subject to the provisions of paragraph 2 of
Article 20, pensions and other similar remuneration paid to a resident of a
Contracting State in consideration of past employment shall be taxable only in
that State.
2. Notwithstanding the provisions of paragraph 1,
pensions paid and other payments made under a public scheme which is part of
the social security system of a Contracting State or any local authorities
thereof shall be taxable only in that State.
Article
20
Government Service
1. (a) Salaries, wages and other similar
remuneration, other than a pension, paid by a Contracting State or a local authority
thereof to an individual in respect of services rendered to that State or a
local authority shall be taxable only in that State.
(b) However, such salaries, wages and other similar
remuneration shall be taxable only in the other Contracting State if the
services are rendered in that Contracting State and the individual is a
resident of that State who:
(i) is a national of that Contracting State; or
(ii) did not become a resident of that Contracting
State solely for the purpose of rendering the services.
2. (a) Any pension paid by, or out of funds created
by, a Contracting State or a local authority thereof to an individual in
respect of services rendered to that State or a local authority shall be
taxable only in that State.
(b) However, such pension shall be taxable only in
the other Contracting State if the individual is a resident of, and a national
of that other Contracting State.
3. The provisions of Articles 16, 17, 18 and 19
shall apply to salaries, wages, pensions, and other similar remuneration in
respect of services rendered in connection with a business carried on by a
Contracting State or a local authority thereof.
Article
21
Students and Apprentices
Payments which a student or business trainee or
apprentice 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 he
taxed in that State, provided that such payments arise from sources outside
that State.
Article
22
Other Income
1. Items of income of a resident of a Contracting
State, wherever arising, not dealt with in the foregoing Articles of this
Agreement shall be taxable only in that State.
2. The provisions of paragraph 1 shall not apply to
income, other than income from immovable property as defined in paragraph 2 of
Article 6, if the recipient of such income, being a resident of a Contracting
Stale, carries on business in the other Contracting State 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 income is paid is effectively connected with such
permanent establishment or fixed base. In such case the provisions of Article 7
or Article 15, as the case may be, shall apply.
3. Notwithstanding the provisions of paragraphs 1
and 2, items of income of a resident of a Contracting State not dealt with in
the foregoing Articles of this Agreement and arising in the other Contracting
State may also be taxed in that other Contracting State.
Article
23
Methods for Elimination of Double Taxation
1. In Cambodia, double taxation shall be eliminated
as follows:
(a) Where a resident of Cambodia derives income
which, in accordance with the provisions of this Agreement, may be taxed in
Viet Nam, Cambodia shall allow as a deduction from the tax on the income of
that resident, an amount equal to the income tax paid in Viet Nam. Such
deduction shall not, however, exceed that part of the tax on income, as
computed before the deduction is given, which is attributable to the income
which may be taxed in Viet Nam.
(b) Where in accordance with any provisions of the
Agreement income derived by a resident of Cambodia is exempt from tax in
Cambodia, Cambodia may nevertheless, in calculating the amount of tax on the
remaining income of such resident, take into account the exempted income.
(c) For the purposes of subparagraph 1 (a) above,
the term "income tax paid in Viet Nam" shall be deemed to include the
amount of Vietnamese tax which, under the laws of Viet Nam and in accordance
with this Agreement, would have been paid had the Vietnamese tax not been
exempted or reduced in accordance with the Law on Foreign Investment in Viet
Nam and connected regulations or any other special incentive measures designed
to promote economic development in Viet Nam.
2. In Viet Nam, double taxation shall be eliminated
as follows:
(a) Where a resident of Viet Nam derives income
which, in accordance with the provisions of this Agreement, may be taxed in
Cambodia, Viet Nam shall allow as a deduction from the tax on the income of
that resident, an amount equal to the income tax paid in Cambodia. Such
deduction shall not, however, exceed that part of the tax on income, as
computed before the deduction is given, which is attributable to the income
which may be taxed in Cambodia.
(b) Where in accordance with any provisions of the
Agreement income derived by a resident of Viet Nam is exempt from tax in Viet
Nam. Viet Nam may nevertheless, in calculating the amount of tax on the
remaining income of such resident, take into account the exempted income.
(c) For the purposes of subparagraph 2(a) above,
the term "income tax paid in Cambodia" shall be deemed to include the
tax which is otherwise payable in Cambodia but has been reduced or waived in
accordance with the Law on Investment and other special incentive measures designed
to promote economic development in Cambodia.
3. For the purposes of paragraph 2(a) of this
Article, the term "tax paid in Cambodia" does not include Additional
Profit Tax on Dividend Distribution payable in respect of income to which the
provisions of paragraph 2(b) of this Article applies.
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 Contracting State in the same
circumstances, in particular with respect to residence, are or may be
subjected. This provision shall, notwithstanding the provisions of Article 1,
also apply to persons who are not residents of one or both of the Contracting
States.
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 Contracting State than the taxation
levied on enterprises of that other Contracting State carrying on the same
activities. This provision shall not 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, paragraph 6 of Article 12 or paragraph 6
of Article 13 apply, interest, royalties, fees for technical services 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.
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 or may be subjected.
5. The provisions of this Article shall apply to
the taxes covered in this Agreement.
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 Agreement, 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. The case must be presented within three years
from the first notification of the action resulting in taxation not in
accordance with the provisions of the Agreement.
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 mutual agreement with the
competent authority of the other Contracting State, with a view to the
avoidance of taxation which is not in accordance with this Agreement. Any
agreement reached shall be implemented notwithstanding any time limits in the
domestic law of the Contracting States.
3. The competent authorities of the Contracting
States shall endeavour to resolve by mutual agreement any difficulties or
doubts arising as to the interpretation or application of the Agreement. They
may also consult together for the elimination of double taxation in cases not
provided for in the Agreement.
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.
Article
26
Exchange of Information
1. The competent authorities of the Contracting
States shall exchange such information as is foreseeably relevant for carrying
out the provisions of this Agreement or to the administration or enforcement of
the domestic laws of the Contracting States concerning taxes of every kind and
description imposed on behalf of the Contracting States, or any local
authorities, insofar as the taxation thereunder is not contrary to the
Agreement, in particular for the prevention of fraud or evasion of such taxes.
2. Any information received under paragraph 1 by a
Contracting State shall be treated as secret in the same manner as information
obtained under the domestic laws of that State and shall be disclosed only to
persons or authorities (including courts and administrative bodies) concerned
with the assessment or collection of, the enforcement or prosecution in respect
of, or the determination of appeals in relation to, the taxes referred to in
paragraph 1, or the oversight of the above. 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.
3. In no case shall the provisions of paragraphs 1
and 2 be construed so as to impose on a Contracting State the obligation:
(a) To carry out administrative measures at
variance with the laws and administrative practice of that or of the other
Contracting State;
(b) To supply information which 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.
4. If information is requested by a Contracting
State in accordance with this Article, the other Contracting State shall use
its information gathering measures to obtain the requested information, even
though that other State may not need such information for its own tax purposes.
The obligation contained in the preceding sentence is subject to the
limitations of paragraph 3 but in no case shall such limitations be construed
to permit a Contracting State to decline to supply information solely because
it has no domestic interest in such information.
5. In no case shall the provisions of paragraph 3
be construed to permit a Contracting State to decline to supply information
solely because the information is held by a bank, other financial institution,
nominee or person acting in an agency or a fiduciary capacity or because it
relates to ownership interests in a person.
Article
27
Members of Diplomatic Missions and Consular Posts
Nothing in this Agreement 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.
Article
28
Entry into Force
1. Each of the Contracting State shall notify to
the other in writing through the diplomatic channels the completion of the
procedures required by its legislation for the entry into force of this
Agreement. This Agreement shall enter into force on the date of receipt of the
later of these notifications.
2. This Agreement shall have effect:
(a) in respect of taxes withheld at source, in
relation to taxable amount as derived on or after the first day of January
following the calendar year in which the Agreement enters into force and in
subsequent calendar years; and
(b) in respect of other taxes, in relation to
income arising on or after the first day of January following the calendar year
in which the Agreement enters into force, and in subsequent calendar years.
Article
29
Termination
This Agreement shall remain in force until
terminated by one of the Contracting States. Either Contracting State may
terminate the Agreement, through diplomatic channels, by giving to the other
Contracting State, written notice of termination at least six months before the
end of any calendar year beginning after expiration of five years from the date
that the Agreement enters into force. In such event, the Agreement shall cease
to have effect:
(a) in respect of taxes withheld at source, in
relation to taxable amounts as derived on or after the first day of January
following the calendar year in which the notice of termination has been
received, and in subsequent calendar years; and
(b) in respect of other taxes, in relation to income,
profits, or gains arising on or after the first day of January following the
calendar year in which the notice of termination has been received, and in
subsequent calendar years.
IN WITNESS WHEREOF the undersigned, being
duly authorised hereto by their respective Governments, have signed this
Agreement.
DONE in duplicate at Hanoi this 31st
day of March 2018, in the English language.
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FOR THE
GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM
Tran Xuan Ha
Deputy Minister of the Ministry of Finance
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FOR THE
GOVERNMENT OF THE KINGDOM OF CAMBODIA
Dr. Chou Vichith
Secretary of State of the Ministry of Economy and Finance
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