A SA v Portuguese Treasury : Case no 0621/09

Resource Information

The work A SA v Portuguese Treasury : Case no 0621/09 represents a distinct intellectual or artistic creation found in International Bureau of Fiscal Documentation. This resource is a combination of several types including: Work, Language Material, Continuing Resources.

Label

A SA v Portuguese Treasury : Case no 0621/09

Creator

• Palma, R. Camacho

Contributor

• Baker, P

Subject

• case law
• royalties
• tax treaty
• treaty interpretation

Language

eng

Summary

Judgment by the Supreme Administrative Court, Contentious Tax Section (Second Bench), Lisbon, dated 2 February 2011. In 1994 the appellant company purchased from a Belgian company a design computer programme for its own business use. During the years 1995 to 1997 it made payments to the Belgian company in respect of use of the computer software, but did not withhold tax on those payments. The Portuguese tax authorities concluded that the payments were royalties within art 12 of the Belgium-Portugal double taxation convention of 16 July 1969 which defined 'royalties' as '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 (...)'. The company considered, however, that the payments were business profits, not taxable in Portugal in the absence of a permanent establishment of the Belgian company. The Commentary to art 12 was amended in 1992 to include references to computer software. At the time, Portugal entered a reservation to the Commentary relating to the right to tax at source income arising from software programmes, other than from the full transfer of the rights concerning the programmes. After unsuccessfully appealing to the Administrative Tax Court of Leiria, the taxpayer company further appealed to the Supreme Administrative Court. Allowing the appeal, it was held that the payments were not royalties within the definition of art 12 of the convention, the OECD Commentaries were not binding on Member States, and the reservation entered into by Portugal was entirely irrelevant for ascertaining the meaning of a 1969 convention

Citation source

In: International tax law reports. - London. - Vol. 13 (2011),

Geographic coverage

• European Union
• Europe

Language note

English

http://bibfra.me/vocab/relation/transl

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