颁布日期：19980211 　实施日期：19980410

　　Article 1　Permanent Establishment and its Business Profits

　　1. The profits of an enterprise of One Side shall be taxable only on that Side unless the enterprise carries on business on the Other Side through a permanent establishment situated¹ therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed on the Other Side but only so much of them as is attributable to that permanent establishment.

　　2. The term “permanent establishment” means a fixed² place of business through which the business of an enterprise is wholly or partly carried on.

　　3. The term “ permanent establishment ”includes in particular:

　　(1) a place of management;

　　(2) a branch;

　　(3) an office;

　　(4) a factory;

　　(5) a workshop;

　　(6) a mine . an oil or gas well .a quarry³ or any other place of extraction of natural resources.

　　4. The term “permanent establishment” also includes:

　　(1) a building site . a construction , assembly or installation project or supervisory activities in connection therewith , but only where such site, project or activities continue for a period of more than 6 months;

　　(2) services, including consultancy services , furnished by an enterprise of One Side , through employees or other personnel on the Other Side ,provided that such services have been furnished for the same project or a connected project for a period or periods exceeding in the aggregate⁴ 6 months in any 12-month period.

　　5. Notwithstanding the provisions of paragraphs 2 to 4 of this Article, the term “ permanent establishment” shall be regarded as not including:

　　(1) the use of facilities solely⁵ for the purpose of storage , display of delivery of goods or merchandise belonging to the enterprise;

　　(2) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage . display or delivery;

　　(3) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;

　　(4) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise , or of advertising⁶ .or of collecting information , for the enterprise;

　　(5) the maintenance of a fixed place of business solely for the purpose of carrying on for the cnterprise.any other activity of a preparatory or auxiliary⁷ character;

　　(6) the maintenance of a fixed place of business solely for any combination of the activities mentioned in sub-paragraphs (1) to (5) of this paragraph, provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.

　　6. Notwithstanding the provisions of paragraphs 2 and 3 of this Article, where a person, other than an agent of an independent status to whom the provisions of paragraph 7 of this Article apply , is acting⁸ on One Side on behalf of an enterprise of the Other Side and has ,and habitually¹⁰ exercises . an authority to conclude contracts in the name of the enterprise .that enterprise shall be regarded as having a permanent establishment on the first –mentioned Side in respect of any activities which that person undertakes for the enterprise, unless his activities are limited to those mentioned in paragraph 5 of this Article 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.

　　7. An enterprise of one side shall not be regarded as having a permanent establishment on the Other Side merely because it carries on business on that Other Side through a broker¹¹, 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 devoted¹² wholly or almost wholly on behalf of that enterprise, he will not be regarded as an independent status within the meaning of this paragraph.

　　8. The fact that a company which is a resident of One Side controls or is controlled by a company which is a resident of the Other Side or which carries on business on that Other Side (Whether through a permanent establishment or otherwise ) , shall not of itself constitute either company a permanent establishment of the other.

　　Article 2　Shipping¹³, Air and Land Transport

　　1. Revenus and profits from the operation of ships, aircraft or land transport vehicles carried on by an enterprise of One Side on the Other Side shall be exempt¹⁴ from tax (which, in the case of the Mainland of China. includes Business Tax) on the Other Side.

　　2. The provisions of paragraph 1 of this Article shall also apply to revenue and profits derived¹⁵ from the participation¹⁶ in a pool, a joint¹⁷ business or an international operating agency.

　　Article 3　Personal Services

　　1. Independent personal services

　　(1) Income derived by a resident of One Side in respect of professional services or other activities of an -234-

　　independent character shall be taxable only on that Side except in any one of the following circumstances. where such income may also be taxed on the Other Side.

　　(i) if he has a fixed base regularly available to him on the Other Side for the purpose of performing his activities; in such case, only so much of the income as is attributable to that fixed base many be taxed on that Other Side;

　　(ii) if he stays on the Other Side for a period or periods exceeding in the aggregate 183 days in the calender year concerned; in such case, only so much of the income as is derived from his activities performed on that Other Side may be taxed on that Other Side.

　　(2) The term “ professional services” , in particular includes independent scientific, literary, artistic¹⁸, educational or teaching activities as well as the independent activities of physicians . lawyers, engineers architects, dentists and accountants.

　　2. Dependent personal services

　　(1) Subject to the provisions of paragraph 3 of this Article, salaries, wages and other similar remuneration derived by a resident of One Side in respect of an employment shall be taxable only on that Side unless the employment is exercised on the Other Side ,If the employment is so exercised, such remuneration as is derived therefrom may be taxed on the Other Side.

　　(2) Notwithstanding the provisions of sub-paragraph (1) of this paragraph , remuneration derived by a resident of One Side in respect of an employment exercised on the Other Side shall be taxable only on the first –mentioned Side if:

　　(i) the recipient¹⁹ stays on that Other Side for a period or periods not exceeding in the aggregate 183 days in the calendar year concerned ; and

　　(ii) the remuneration is paid by, or on behalf of , an employer who is not a resident of that Other Side ; and

　　(iii) the remuneration is not borne by a permanent establishment or a fixed base which the employer has on that Other Side.

　　(3)Notwithstanding the provisions of sub-paragraphs (1) and (2) of this paragraph,remuneration derived in respect of an employment exercised aboard a ship,an aircraft or a land transport vehicle operated in international traffic by an enterprise of One Side shall be taxable only on the Side in which the enterprise is situated.

　　3. Directors' fees

　　Notwithstanding the provisions of paragraphs 1and 2 of this Article, directors' fees and other similar payments derived by a resident of One Side in his capacity as a member of the board of directors of a company which is a resident of the Other Side may be taxed on that Other Side.

　　4. Artistes and athletes

　　Notwithstanding the provisions of paragraphs 1 and 2 of this Article:

　　(1) income derived by a resident of One Side as an entertainer , such as a theatre, motion picture, radio or television artiste, or a musician , or as an athlete, from his personal activities as such exercised on the Other Side may be taxed on that Other Side.

　　(2) where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues²⁰ not to the entertainer or athlete himself but to another person , that income may be taxed on the Side on which the activities of the entertainer or athlete are exercised.

　　Article 4　Methods of Elimination²¹ of Double Taxation²²

　　1. In the Mainland of China, double taxation shall be eliminated as follows:

　　Where a resident of the Mainland of China derives²³ income from the Hong Kong Special Administrative²⁴ Region.the amount of tax paid in the Hong Kong Special Administrative Region in respect of that income in accordance with the provisions of this Arrangement shall be allowed as a credit against the Mainland tax imposed on that resident. The amount of credit, however, shall not exceed the amount of the Mainland tax computed²⁵ in respect of that income in accordance with the taxation laws and regulations of the Mainland of China.

　　2. In the Hong Kong Special Administrative Region. double taxation shall be eliminated as follows:

　　Subject to the provisions of the taxation laws and regulations of the Hong Kong Special Administrative Region regarding the allowance of deduction²⁶ or credit against the Hong Kong special Administrative Region tax of tax paid in any place other than the Hong Kong Special Administrative Region.where a resident of the Hong Kong Special Administrative Region derives income from the Mainland of China, the amount of tax paid in the Mainland of China in respect of that income in accordance with the provisions of this Arrangement shall be allowed as a credit against the Hong Kong Special Administrative Region tax imposed on that resident. The amount of credit, however, shall not exceed the amount of the Hong Kong Special Administrative Region tax computed in respect of that income in accordance with the taxation laws and regulations of the Hong Kong Special Administrative Region.

　　Article 5　Consultation²⁷

　　The competent authorities of the two Sides shall endeavour to resolve by consultation any difficulties or doubts arising as to the interpretation²⁸ or application of this Arrangement.They may also consult together for the elimination of double taxation in cases not provided for in this Arrangement.In order to facilitate reaching consensus,representatives of the competent authorities of the two Sides may proceed with consultation by an oral exchange of opinions.

　　Article 6　Personal Scope and Taxes Covered

　　1. Personal scope

　　(1) This Arrangement shall apply to a person who is a resident of One Side or a resident of both Sides. The term “resident” means any person who is liable to tax of One Side by reason of his residence, domicile, place of effective management, place of head office or any other criterion of a similar nature in accordance with the laws of the respective Sides.

　　(2) Where by reason of the provisions of sub-paragraph (1) of this paragraph an individual is a resident of both a Sides. his status shall be determined²⁹ as follows:

　　(i) he shall be regarded as a resident of the Side on which he has a permanent home available to him; if he has a permanent home available to him on both Side.he shall be regarded as a resident of the Side with which his personal and economic relations are closer ( “ center of vital interests”)

　　(ii) if the Side on which he has his center of vital interests cannot be determined.or if he has not a permanent home available to him on either Side , he shall be regarded as a resident of the Side on which he has an habitual⁹ abode³⁰;

　　(iii) if he has an habitual abode on both Sides or on neither of them , the competent authorities of the two Sides shall settle the question by consultation.

　　(3) Where by reason of the provisions of sub-paragraph (1) of this paragraph a person other than an individual is a resident of both Sides,the competent authorities of the two Sides shall determine itsresidential status by consultation.

　　2. Taxes covered

　　Subject to any other provisions,the existing taxes to which this Arrangement shall apply are:

　　(1) In the Mainland of China:

　　(i) Individual Income Tax;

　　(ii) Foreign Investment Enterprises Income Tax And Foreign Enterprises Income Tax (herein referred to as “Mainland tax”);

　　(2) In the Hong Kong Special Administrative Region;

　　(i) Profits Tax

　　(ii) Salaries Tax

　　(iii) Tax charged under Personal Assessment³¹

　　( herein referred to as “ Hong Kong Special Administrative Region tax”).

　　(3.) This Arrangement shall also apply to any identical or substantially similar taxes which are imposed after the date when this Arrangement comes into effect in addition to. or in place of,the existing taxes referred to above. The competent authorities of the two Sides shall notify each other of any substantial changes which have been made in their respective taxation laws within a reasonable period of time after such changes.

　　Article 7　General Definitions

　　1. For the purposes of this Arrangement, unless the context otherwise requires;

　　(1) the terms “One Side “ and “the Other Side” mean the Mainland of China or the Hong Kong Special Administrative Region as the context requires;

　　(2) the term “ person” includes an individual. a company and any other body of persons;

　　(3) the term “ company “ means any body corporate³² or any entity³³ which is treated as a body corporate for tax purposes;

　　(4) the terms “enterprise of One Side “ and “ enterprise of the Other Side” respectively mean an enterprise carried on by a resident of One Side and an enterprise carried on by a resident of the Other Side;

　　(5) the term “shipping , air and land transport” means any transport by ships,aircraft or land transport vehicles operated by an enterprise of One Side, except when the ships,aircraft or land transport vehicles are operated solely between places on the Other Side;

　　(6) the term “ Competent authority “ means, in the case of the Mainland of China the State Administration of Taxation or its authorized³⁴ representatives and , in the case of the Hong Kong Special Administrative Region.the Commissioner³⁵ of Inland Revenue of the Hong Kong Special Administrative Region Government or his authorized representatives.

　　2. As regards the application of this Arrangement by One Side, any term defined herein shall , unless the context otherwise requires, have the meaning which it has under the laws of that Side concerning the taxes to which this Arrangement applies.

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