Протокол к Соглашению об избежании двойного налогообложения между РФ и Кипром

PROTOCOL TO THE AGREEMENT BETWEEN THE GOVERNMENT OF THE RUSSIAN FEDERATION AND THE GOVERNMENT OF

THE REPUBLIC OF CYPRUS FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL

(Nicosia, 16 April, 2009)

The Government of the Russian Federation and the Government of the Republic of  Cyprus,  desiring  to  conclude  a  Protocol  to  amend  the  Agreement  between  the Contracting States for the avoidance of double taxation with respect to taxes on income and on capital signed at Nicosia on 5th December, 1998 (hereinafter referred to as "the Agreement"),
have agreed as follows:

ARTICLE I

A new paragraph 4 shall be added to Article 4 "Resident" of the Agreement that shall read as follows:
"4. Where the place of effective management of a person other than an individual can  not  be  determined,  the  competent  authorities  of  the  Contracting  States  shall endeavour, having regard to all factors they consider relevant, to determine by mutual agreement the place of effective management in each individual case."

ARTICLE II

1. A new paragraph 4 shall be added to Article 5 "Permanent Establishment" of the Agreement that shall read as follows:
"4. Notwithstanding the provisions of paragraphs 1, 2 and 3, where enterprise of a
Contracting State performs services in the other Contracting State:
a) through an individual who is present in that other State for a period or periods exceeding in the aggregate 183 days in any twelve month period, and more than 50 % of the gross revenues attributable to active business activities of the enterprise during this  period or  periods are  derived  from  the  services  performed  in  that  other  State through that individual, or
b) for a period or periods exceeding in the aggregate 183 days in any twelve month period, and these services are performed for the same project or for connected projects through one or more individuals who are present and performing such services in that other State,
the activities carried on in that other State in performing these services shall be deemed to be carried on through a permanent establishment of the enterprise situated in that other State, unless these services are limited to those mentioned in paragraph 5 which, if performed through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions  of that paragraph. For the purposes  of  this  paragraph  services  performed  by  an  individual  on  behalf  of  one
 
enterprise shall not be considered to be performed by another enterprise through that individual  unless  that other enterprise supervises, directs or controls the manner in which these services are performed by the individual."
2. Existing paragraphs 4, 5, 6 and 7 shall be renumbered as paragraphs 5, 6, 7
and 8.

ARTICLE III

A new paragraph 5 shall be added to Article 6 "Income from Immovable Property" of the Agreement that shall read as follows:
"5. The provisions of paragraphs 1 and 3 shall also apply to the income of mutual equity funds investing only in immovable property."

ARTICLE IV

1. Paragraph 1 of Article 8 "Income from International Traffic" of the Agreement shall be deleted and replaced by paragraph 1 that shall read as follows:
"1. Income from the operation in international traffic of ships or aircraft, or road vehicles by the owners or lessees, or charterers and the rental of containers and related equipment which is incidental to  the operation of ships or aircraft, or road vehicles in international traffic shall be taxable only in the Contracting State in which the place of effective management of these persons deriving such income is situated."

ARTICLE V

1. Subparagraph (a) of paragraph 2 of Article 10 "Dividends" of the Agreement shall be modified as follows:
"(a) 5 % of the gross amount of the dividends if the beneficial owner has directly invested in the capital of the company paying the dividends the equivalent of 100 000 euro;"
2. Paragraph 3 of Article 10 shall be modified as follows:
"The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income - even paid in the form of interest - which is  subjected to the same taxation treatment as income from shares by the tax legislation of the State of which the paying company is a resident. This term also means any payments on shares of the mutual  investment funds or similar collective investment vehicles.
The  term  "shares"  as  used  in  this  Article  shall  include  depositary  receipts thereof."

ARTICLE VI

1. Paragraph 2 of Article 11 shall be modified as follows:
"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. However,  the term "interest" shall not include for the purpose  of  this  Article  penalty  charges  for  late  payment  or  interest  regarded  as dividends under paragraph 3 of Article 10."

ARTICLE VII

1. New paragraphs 4, 5 and 6 shall be added to Article 13 "Gains from Alienation of Property" of the Agreement that shall read as follows:
"4. Gains derived by a resident of the Contracting State from the alienation of shares deriving more than 50 % of their value from immovable property situated in the other Contracting State may be taxed in that other State.
5. For the purposes of paragraph 4, gains from the alienation of shares shall not include gains from the alienation of shares in the course of a corporate reorganisation, and gains from the alienation of shares listed on are cognised stock exchange.
6. The provisions of paragraph 4 shall not apply to gains from the alienation of shares  derived   by  a  pension  fund,  a  provident  fund  and  the  Government  of  a Contracting State."
2. Existing paragraph 4 of Article 13 of the Agreement shall be renumbered as paragraph 7.

ARTICLE IX

1. Paragraph 1 of Article 25 "Mutual Agreement Procedure" of the Agreement shall be modified as follows:
"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 either Contracting State. The case must be presented within three years from the first notification of the action resulting in taxation not in according with the provisions of the Agreement."
2. Paragraph 4 of Article 25 "Mutual Agreement Procedure" of the Agreement shall be modified as follows:
"4. The competent authorities of the Contracting States may communicate with each other  directly, including through a joint commission consisting of themselves or their  representatives,  for  the  purpose  of  reaching  an  agreement  in  the  sense  of preceding paragraphs."

ARTICLE X

Article  26  "Exchange  of  Information"  of  the  Agreement  shall  be  modified  as follows:
 
"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 concerning taxes of every kind and description imposed on behalf of  the Contracting States, or of their political subdivisions or local authorities, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Articles 1 and 2.
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, 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 (ordre public).
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 XI

Article  27  "Assistance  in  Collection"  of  the  Agreement  shall  be  modified  as follows:

"Article 27
Assistance in Collection
 
1. The Contracting States shall undertake to lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Articles 1 and 2. The competent authorities of the  Contracting States may by mutual agreement settle the mode of application of this Article.
2. The term "revenue claim" as used in this Article means an amount owed in respect of  taxes of every kind and description imposed on behalf of the Contracting States,  or  of  their  political  subdivisions  or  local  authorities,  insofar  as  the  taxation thereunder is not contrary to this  Agreement  or any other instrument to  which  the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3. When a revenue claim of a Contracting State is enforceable under the laws of that State and  is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in  accordance  with  the  provisions  of  its  laws  applicable  to  the  enforcement  and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4. When a revenue claim of a Contracting State is a claim in respect of which that State may,  under its law, take measures of conservancy with a view to ensure its collection, that revenue  claim  shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority  of  the  other  Contracting  State.  That  other  State  shall  take  measures  of conservancy in respect of that revenue claim in accordance with the  provisions of its laws as if the revenue claim were a revenue claim of that other State.
5.  Notwithstanding  the  provisions  of  paragraphs  3  and  4,  a  revenue  claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature  as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the  other Contracting State.
6. Proceedings with respect to the existence, validity or the amount of a revenue claim of a  Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7. Where, at any time after a request has been made by a Contracting State under  paragraph  3  or  4 and  before  the  other  Contracting  State has collected and remitted the relevant  revenue claim to the first-mentioned State, the relevant revenue claim ceases to be:
a) in the case of a request under paragraph 3, a revenue claim of the first- mentioned  State  that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, or
b) in the case of a request under paragraph 4, a revenue claim of the first- mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collection
the competent authority of  the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State,
 
the first-mentioned State shall either suspend or withdraw its request.
8. In no case shall the provisions of this Article 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 carry out measures which would be contrary to public policy (ordre public);
c) to  provide  assistance  if  the  other  Contracting  State  has  not  pursued  all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;
d) to provide assistance in those cases where the administrative burden for that State is clearly  disproportionate to the benefit to be derived by the other Contracting State."

ARTICLE XII

1. A new Article 29 "Limitation of Benefits" shall be added that shall read as follows:

Article 29
Limitation of Benefits

"1. It is understood that a resident of a Contracting State shall not be entitled to any reduction  of, or exemption from taxes provided for in this Agreement on income derived from the other  Contracting State if as a result of consultations between the competent authorities of both Contracting States it is established that the main purpose or one of the main purposes of the creation or existence of such resident was to obtain the benefits under this Agreement that would not otherwise be available.
2. The provisions of paragraph 1 shall only apply to companies that are not registered in a Contracting State but claim the benefits of the Agreement."
2. Existing Articles 29 "Entry into Force" and 30 "Termination" of the Agreement shall be renumbered accordingly.

ARTICLE XIII

Each of the Contracting States shall notify to the other, through the diplomatic channels, the completion of the procedures required by its domestic law for the bringing into  force  of  this  Protocol.  The  Protocol,  which  shall  form  an  integral  part  of  the Agreement, shall enter into force on the date of the latter of these notifications and shall have effect in both States for taxable periods beginning on or after 1st January in the calendar year next following that in which the Protocol enters into force, except for:
(i) Article VII, which shall have effect as from the calendar year following the expiration of a period of four years from the date on which the Protocol enters into force. (ii) Article XI, which shall take  effect upon the introduction by Cyprus of the
necessary legal basis.
 
Done in duplicate at Nicosia this 16 day of April 2009 in the Russian, Greek and English languages, all texts being equally authentic. In the case of any divergence between the Russian and the Greek texts, the English text shall be the operative one.

For the Government    (signature)

For the Government of the Russian Federation of the Republic of Cyprus (signature)