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文档位置:主页 > 国际税收协定库 > 美国 > 正文
  • 发文单位:中华财税网
  • 文    号:
  • 颁布日期:1997-02-17
  • 失效日期:
DEPARTMENT OF THE TREASURY TECHNICAL EXPLANATION OF THE CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF SOUTH AFRICA (6)
  
DEPARTMENT OF THE TREASURY TECHNICAL EXPLANATION OF THE CONVENTION BETWEEN
THE UNITED STATES OF AMERICA AND THE REPUBLIC OF SOUTH AFRICA FOR THE
AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH
RESPECT TO TAXES ON INCOME AND CAPITAL GAINS (6)

Paragraph 3
  Paragraph 3 provides an exception to the exclusive residence taxation
rule of paragraph 1 in cases where the beneficial owner of the interest
carries on business through a permanent establishment in the State of
source or performs independent personal services from a fixed base
situated in that State and the interest is attributable to that permanent
establishment or fixed base.In such cases the provisions of Article 7
(Business Profits) or Article 14 (Independent Personal Services) will
apply and the State of source will retain the right to impose tax on such
interest income.
  In the case of a permanent establishment or fixed base that once
existed in the State but that no longer exists, the provisions of
paragraph 3 also apply, by virtue of paragraph 7 of Article 7 (Business
Profits), to interest that would be attributable to such a permanent
establishment or fixed base if it did exist in the year of payment or
accrual. See the Technical Explanation of paragraph 7 of Article 7.
Paragraph 4
  Paragraph 4 provides that in cases involving special relationships
between persons, Article 11 applies only to that portion of the total
interest payments that would have been made absent such special
relationships (i.e., an arm's length interest payment). Any excess amount
of interest paid remains taxable according to the laws of the United
States and South Africa, respectively, with due regard to the other
provisions of the Convention. Thus, if the excess amount would be treated
under the source country's law as a distribution of profits by a corporation,
such amount could be taxed as a dividend rather than as
interest, but the tax would be subject, if appropriate, to the rate
limitations of paragraph 2 of Article 10 (Dividends).
  The term "special relationship" is not defined in the Convention. In
applying this paragraph the United States considers the term to include
the relationships described in Article 9, which in turn correspond to the
definition of "control" for purposes of section 482 of the Code.
  This paragraph does not address cases where, owing to a special
relationship between the payor and the beneficial owner or between both of
them and some other person, the amount of the interest is less than an
arm's length amount. In those cases a transaction may be characterized
to reflect its substance and interest may be imputed consistent with the
definition of interest in paragraph 2. The United States would apply
section 482 or 7872 of the Code to determine the amount of imputed
interest in those cases.
Paragraph 5
  Paragraph 5 provides anti-abuse exceptions to the source-country
exemption in paragraph 1 for two classes of interest payments.
  The first exception, in subparagraph (a) of paragraph 5, deals with
so-called "contingent interest." Under this provision interest arising in
one of the Contracting States that is determined by reference to the
receipts, sales, income, profits or other cash flow of the debtor or a
related person, to any change in the value of any property of the debtor
or a related person or to any dividend, partnership distribution or
similar payment made by the debtor or a related person, and paid to a
resident of the other State also may be taxed in the Contracting State in
which it arises, and according to the laws of that State, but if the
beneficial owner is a resident of the other Contracting State, the gross
amount of the interest may be taxed at a rate not exceeding the 15 percent
rate prescribed in subparagraph (b) of paragraph 2 of Article 10
(Dividends). See Code section 871(h)(4). The same rule would apply to
interest that is contingent interest disqualified as portfolio interest
under Treasury regulations or subsequent modifications of Code section
871(h)(4).
  The second exception, in subparagraph (b) of paragraph 5, is
consistent with the policy of Code sections 860E(e) and 86OG(b) that
excess inclusions with respect to a real estate mortgage investment
conduit (REMIC) should bear full U.S. tax in all cases. Without a full tax
at source foreign purchasers of residual interests would have a
competitive advantage over U.S. purchasers at the time these interests are
initially offered. Also, absent this rule the U.S. FISC would suffer a
revenue loss with respect to mortgages held in a REMIC because of
opportunities for tax avoidance created by differences in the timing of
taxable and economic income produced by these interests.

Relation to Other Articles
  Notwithstanding the foregoing limitations on source country taxation
of interest, the saving clause of paragraph 4 of Article 1 permits the
United States to tax its residents and citizens, subject to the special
foreign tax credit rules of paragraph 2 of Article 23 (Elimination of
Double Taxation), as if the Convention had not come into force.
As with other benefits of the Convention, the benefits of exclusive
residence State taxation of interest under paragraph 1 of Article 11, or
limited source taxation under paragraph 5(a), are available to a resident
of the other State only if that resident is entitled to those benefits
under the provisions of Article 22 (Limitation on Benefits).

               ARTICLE 12
               Royalties
  Article 12 specifies the taxing jurisdiction over royalties of the
States of residence and source and defines the terms necessary to apply
the Article.
Paragraph 1
  Paragraph 1 grants to the State of residence of the beneficial owner
of royalties the exclusive right to tax royalties arising in the other
Contracting State, subject to exceptions provided in paragraph 3 (for
royalties taxable as business profits and independent personal services).
  The "beneficial owner" of a royalty payment is understood generally to
refer to any person resident in a Contracting State to whom that State
attributes the payment for purposes of its tax. Paragraph 1(d) of Article
4 (Residence) makes this point explicitly with regard to income derived by
fiscally transparent persons. Further, in accordance with paragraph 4 of
the OECD Commentaries to Article 12, the source State may disregard as
beneficial owner certain persons that nominally may receive a royalty
payment but in substance do not control it. See also, paragraph 24 of the
OECD Commentaries to Article 1 (General Scope).
Paragraph 2
  The term "royalties" as used in Article 12 is defined in paragraph 2
to include amounts of any kind received as a consideration for the use of,
or the right to use, any copyright of a literary, artistic, scientific or
other work; for the use of, or the right to use, any patent, trademark,
design or model, plan, secret formula or process, or other like right or
property; or for information concerning industrial, commercial, or
scientific experience. It does not include income from leasing personal
property. Paragraph 1 does not refer to an amount "paid" to a resident of
the other Contracting State. The absence of this term is intended to
eliminate any inference that an amount must actually be paid to the
resident before it is subject to the provisions of Article 12.Under
paragraph 1, an amount that is accrued but not paid also would fall within
Article 12.
  The term royalties is defined in the Convention and therefore is
generally independent of domestic law. Certain terms used in the
definition are not defined in the Convention, but these may be defined
under domestic tax law. For example, the term "secret process or formulas"
is found in the Code, and its meaning has been elaborated in the context
of sections 351 and 367. See Rev. Rul. 55-17, 1955-1 C.B. 388; Rev. Rul.
64-56, 1964-1 C.B. 133; Rev. Proc. 69-19, 1969-2 C.B. 301.
  Consideration for the use or right to use cinematographic films, or
works on film, tape, or other means of reproduction in radio or television
broadcasting is specifically included in the definition of royalties. It
is intended that subsequent technological advances in the field of radio
and television broadcasting will not affect the inclusion of payments
relating to the use of such means of reproduction in the definition of
royalties.
  If an artist who is resident in one Contracting State records a
performance in the other Contracting State, retains a copyrighted interest
in a recording, and receives payments for the right to use the recording
based on the sale or public playing of the recording, then the right of
such other Contracting State to tax those payments is governed by Article
12. See Boulez v. Commissioner, 83 T.C. 584 (1984), aff'd, 810 F.2d 209
(D.C. Cir. 1986).
  Under the Convention consideration received for the use or the right
to use computer programs is treated as royalties or as income from the
alienation of tangible personal property, depending on the facts and
circumstances of the transaction giving rise to the payment. In determining
whether such a payment should be considered a royalty, the
most important factor is whether the transaction is properly characterized
as involving the transfer of rights substantially equivalent to rights in
a material object in which the copyrighted program is embodied, i.e. a
program copy, or rights in the underlying copyright to the program. The
fact that the transaction is characterized as a license for copyright law
purposes is not dispositive. For example, a typical retail sale of a
"shrink wrap? program generally will not be considered to give rise to
royalty income. Only transactions which involve the transfer of rights in
the underlying copyright, such as the rights enumerated in section 106 of
the Copyright Act (17 U.S.C. 106), will result in royalties. For this
purpose, a transfer of the right to reproduce the copyrighted program if
no other copyright rights are transferred, will not generally result in
royalties. Therefore, if a transferee has the limited right to make
additional copies of the program for internal use, or utilize the software
on a network, but the transferee does not have the right to distribute the
copies to the public, and the transferee's rights in the software are
otherwise similar to rights in a program copy, the payment(s) will not be
considered a royalty, since the transaction is effectively equivalent to a
bulk purchase of program copies. In some cases where the transferee's
rights in the program are equivalent to rights in a program copy but the
terms of the transaction require the transferee to make further payments
for its continuing right to use the program, the payments may be properly
characterized as arising from the lease of a program copy, and is,
therefore, not a royalty.
  The means by which the software is transferred is not relevant for
purposes of this analysis. Consequently, if software is electronically
transferred but the rights obtained by the transferee are substantially
equivalent to rights in a program copy, the payment will be considered
income from the alienation of tangible personal property.
  The term "royalties" also includes gain derived from the alienation of
any right or property that would give rise to royalties, to the extent the
gain is contingent on the productivity, use, or further alienation
thereof. Gains that are not so contingent are dealt with under Article 13
(Capital Gains).
  The term "industrial, commercial, or scientific experience" (sometimes
referred to as "know-how") has the meaning ascribed to it in paragraph 11
of the Commentary to Article 12 of the OECD Model Convention. Consistent
with that meaning, the term may include information that is ancillary to a
right otherwise giving rise to royalties, such as a patent or secret
process.
  Know-how also may include, in limited cases, technical information
that is conveyed through technical or consultancy services. It does not
include general educational training of the user's employees, nor does it
include information developed especially for the user, such as a technical
plan or design developed according to the user's specifications. Thus, as
provided in paragraph 11 of the Commentaries to Article 12 of the OECD
Model, the term "royalties" does not include payments received as
consideration for after-sales service, for services rendered by a seller
to a purchaser under a guarantee, or for pure technical assistance.
  The term "royalties" also does not include payments for professional
services (such as architectural, engineering, legal, managerial, medical,
software development services). For example, income from the design of a
refinery by an engineer (even if the engineer employed know-how in the
process of rendering the design) or the production of a legal brief by a
lawyer is not income from the transfer of know-how taxable under Article
12, but is income from services taxable under either Article 14
(Independent Personal Services) or Article 15 (Dependent Personal
Services). Professional services may be embodied in property that gives
rise to royalties, however. Thus, if a professional contracts to develop
patentable property and retains rights in the resulting property under the
development contract, subsequent license payments made for those rights
would be royalties.
Paragraph 3
  This paragraph provides an exception to the rule of paragraph 1 that
gives the State of residence exclusive taxing jurisdiction in cases where
the beneficial owner of the royalties carries on business through a
permanent establishment in the State of source or performs independent
personal services from a fixed base situated in that State and the
royalties are attributable to that permanent establishment or fixed base.
In such cases the provisions of Article 7 (Business Profits) or Article 14
(Independent Personal Services) will apply.
  The provisions of paragraph 7 of Article 7 (Business Profits) apply to
this paragraph. For example, royalty income that is attributable to a
permanent establishment or a fixed base and that accrues during the
existence of the permanent establishment or fixed base, but is received
after the permanent establishment or fixed base no longer exists, remains
taxable under the provisions of Articles 7 (Business Profits) or 14
(Independent Personal Services), respectively, and not under this Article.
Paragraph 4
  Paragraph 4 provides that in cases involving special relationships
between the payor and beneficial owner of royalties, Article 12 applies
only to the extent the royalties would have been paid absent such special
relationships (i.e., an arm's length royalty). Any excess amount of
royalties paid remains taxable according to the laws of the two
Contracting States with due regard to the other provisions of the
Convention. If, for example, the excess amount is treated as a
distribution of corporate profits under domestic law, such excess amount
will be taxed as a dividend rather than as royalties, but the tax imposed
on the dividend payment will be subject to the rate limitations of
paragraph 2 of Article 10 (Dividends).

Relation to Other Articles
Notwithstanding the foregoing limitations on source country taxation
of royalties, the saving clause of paragraph 4 of Article 1 (General
Scope) permits the United States to tax its residents and citizens,
subject to the special foreign tax credit rules of paragraph 2 of Article
23 (Elimination of Double Taxation), as if the Convention had not come
into force. As with other benefits of the Convention, the benefits of
exclusive residence State taxation of royalties under paragraph 1 of
Article 12 are available to a resident of the other State only if that
resident is entitled to those benefits under Article 22 (Limitation on
Benefits).

ARTICLE 13
Capital Gains
  Article 13 assigns either primary or exclusive taxing jurisdiction
over gains from the alienation of property to the State of residence or
the State of source, depending on the type of property that is alienated,
and defines the terms necessary to apply the Article.
Paragraph 1
  Paragraph 1 of Article 13 preserves the non-exclusive right of the
State of source to tax gains attributable to the alienation of real
property situated in that State. The paragraph therefore permits the
United States to apply section 897 of the Code to tax gains derived by a
resident of South Africa that are attributable to the alienation of real
property situated in the United States (as defined in paragraph 2). Gains
attributable to the alienation of real property include gain from
any other property that is treated as a real property interest within the
meaning of paragraph 2.
Paragraph 2
  This paragraph defines the term "real property situated in the other
Contracting State." The term includes real property referred to in Article
6 (Income from Immovable Property (Real Property)) (i.e., an interest in
the real property itself), a "United States real property interest" (when
the United States is the other Contracting State under paragraph 1), and
an equivalent interest in real property situated in South Africa. The
United States, thus, preserves the right to apply its tax under FIRPTA to
all real estate gains encompassed by that provision.
  Under section 897(c) of the Code the term "United States real property
interest" includes shares in a U.S. corporation that owns sufficient U.S.
real property interests to satisfy an assetratio test on certain testing
dates. The term also includes certain foreign corporations that have
elected to be treated as US corporations for this purpose. Section 897(i).
In applying paragraph 1 the United States will look through distributions
made by a REIT. Accordingly, distributions made by a REIT are taxable
under paragraph 1 of Article 13 (not under Article 10 (Dividends))
when they are attributable to gains derived from the alienation of real
property.
Paragraph 3
  Paragraph 3 of Article 13 deals with the taxation of certain gains
from the alienation of movable property forming part of the business
property of a permanent establishment that an enterprise of a Contracting
State has in the other Contracting State or of movable property pertaining
to a fixed base available to a resident of a Contracting State in the
other Contracting State for the purpose of performing independent personal
services. This also includes gains from the alienation of such a permanent
establishment (alone or with the whole enterprise) or of such fixed base.
Such gains may be taxed in the State in which the permanent establishment
or fixed base is located.
  A resident of South Africa that is a partner in a partnership doing
business in the United States generally will have a permanent
establishment in the United States as a result of the activities of the
partnership, assuming that the activities of the partnership rise to the
level of a permanent establishment. Rev. Rul. 91-32, 1991-1 C.B. 107.
Further, under paragraph 3, the United States generally may tax a
partner's distributive share of income realized by a partnership
on the disposition of movable property forming part of the business
property of the partnership in the United States.
Paragraph 4
  This paragraph limits the taxing jurisdiction of the State of source
with respect to gains from the alienation of ships, aircraft, or
containers operated in international traffic or movable property
pertaining to the operation of such ships, aircraft, or containers. Under
paragraph 4 when such income is derived by an enterprise of a Contracting
State it is taxable only in that Contracting State. Notwithstanding
paragraph 3, the rules of this paragraph apply even if the income is
attributable to a permanent establishment maintained by the enterprise in
the other Contracting State. This result is consistent with the general
rule under Article 8 (Shipping and Air Transport) that confers exclusive
taxing rights over international shipping and air transport income on the
State of residence of the enterprise deriving such income.
Paragraph 5
  Paragraph 5 grants to the State of residence of the alienator the
exclusive right to tax gains from the alienation of property other than
property referred to in paragraphs 1 through 4. For example, gain derived
from shares, other than shares described in paragraphs 2 or 3, debt
instruments and various financial instruments, may be taxed only in
the State of residence of the alienator, to the extent such income is not
otherwise characterized as income taxable under another article (e.g.,
Article 10 (Dividends) or Article 11 (Interest)). Similarly, gain derived
from the alienation of tangible personal property, other than tangible
personal property described in paragraph 3, may be taxed only in the State
of residence of the alienator. Gain derived from the alienation of any
property, such as a patent or copyright, that produces income taxable
under Article 12 (Royalties) is taxable under Article 12 and not under
this Article, provided that such gain is of the type described in
paragraph 2(b) of Article 12 (i.e., it is contingent on the productivity,
use, or disposition of the property). Thus, under either article such gain
is taxable only in the State of residence of the alienator. Sales by a
resident of a Contracting State of real property located in a third state
are not taxable in the other Contracting State, even if the sale is
attributable to a permanent establishment located in the other
Contracting State.

Relation to Other Articles
  Notwithstanding the foregoing limitations on taxation of certain gains
by the State of source, the saving clause of paragraph 4 of Article 1
(General Scope) permits the United States to tax its citizens and
residents as if the Convention had not come into effect. Thus, any limitation
in this Article on the right of the United States to tax
gains does not apply to gains of a U.S. citizen or resident.
  The benefits of this Article are also subject to the provisions of
Article 22 (Limitation on Benefits). Thus, only a resident of a
Contracting State that satisfies one of the conditions in Article 22 is
entitled to the benefits of this Article.

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