PROTOCOL

PROTOCOL SIGNED DECEMBER 1, 2005 TO THE CONVENTION BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND THE KYRGYZ REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL

The Federal Republic of Germany and the Kyrgyz Republic have, in addition to the Convention of 1 December 2005 for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, agreed on the following provisions:

(1) In the case of the Federal Republic of Germany, the term "political subdivisions or local authorities" also includes the Länder.

(2) With reference to Articles 6 to 22:

• (a) If in a Contracting State the taxes on dividends, interest, royalties or other items of income derived by a resident of the other Contracting State are levied by withholding at source, the right of the first-mentioned State to apply the withholding of tax at the rate provided under its domestic law shall not be affected by the provisions of this Convention. Upon application by the taxpayer the tax withheld at source shall be refunded if and to the extent that it is reduced or eliminated by the Convention.
• (b) Refund applications must be submitted before the end of the third calendar year following that in which the withholding tax was applied to the dividends, interest, royalties or other items of income.
• (c) Notwithstanding sub-paragraph (a), each Contracting State shall provide for procedures to the effect that payments of income subject under this Convention to no tax or only to reduced tax in the State in which the items of income arise may be made without deduction of tax or with deduction of tax only at the rate provided in the relevant Articles.
• (d) The Contracting State in which the items of income arise may ask for a certificate by the competent authority on the residence in the other Contracting State.
• (e) The competent authorities may settle by mutual agreement the mode of application of this Article and, if necessary, establish other procedures for the implementation of tax reductions or exemptions provided for under the Convention.

(3) With reference to Articles 6 to 23:

• (a) This Convention shall not be construed so as to prevent:
  • (aa) a Contracting State from applying the provisions of its domestic law on the prevention of tax evasion or tax avoidance;
  • (bb) the Federal Republic of Germany from taxing amounts which are to be included in the income of a resident of the Federal Republic of Germany under the fourth part of the German Law on External Tax Relations (Außensteuergesetz).
• (b) Should the above provisions result in double taxation, the competent authorities shall consult together, in accordance with paragraph (3) of Article 25, with a view to the avoidance of double taxation.

(4) With reference to Article 7:

• (a) Where an enterprise of a Contracting State sells goods or merchandise or carries on business in the other Contracting State through a permanent establishment situated therein, the profits of that permanent establishment shall not be determined on the basis of the total amount received therefore by the enterprise but only on the basis of the amount which is attributable to the actual activity of the permanent establishment for such sales or business.
• (b) In the case of contracts, in particular for the survey, supply, installation or construction of industrial, commercial or scientific equipment or premises, or of public works, where the enterprise has a permanent establishment in the other Contracting State, the profits of such permanent establishment shall not be determined on the basis of the total amount of the contract, but only on the basis of that part of the contract which is effectively carried out by the permanent establishment in the Contracting State in which it is situated. Profits derived from the supply of industrial, commercial or scientific equipment to that permanent establishment or profits related to the part of the contract which is carried out in the Contracting State in which the head office of the enterprise is situated shall be taxable only in that State.
• (c) Payments received as a consideration for technical services, including studies or surveys of a scientific, geological or technical nature, or for engineering contracts including blue prints related thereto, or for consultancy or supervisory services shall be deemed to be payments to which the provisions of Article 7 or Article 14 apply.
• (d) No deduction shall be allowed and no account shall be taken in respect of amounts paid or charged, respectively, (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other permanent establishment, by way of:
  • (aa) royalties or other payments in return for the use of patents or other rights;
  • (bb) payments for specific services performed or for management; and
  • (cc) interest on moneys lent to the permanent establishment, except in the case of a banking enterprise.

(5) With reference to Articles 10 and 11:

Notwithstanding the provisions of Articles 10 and 11, dividends and interest arising in the Federal Republic of Germany may be taxed according to the German laws, provided that they are:

• (a) derived from rights or debt-claims carrying a right to participate in profits, including income derived by a silent partner (stiller Gesellschafter) from his participation as such, or from a loan with an interest rate linked to borrower's profit (partiarisches Darlehen) or from profit sharing bonds (Gewinnobligationen) within the meaning of the tax law of the Federal Republic of Germany; and
• (b) deductible in the determination of profits of the debtor of such dividends and interest.

(6) With reference to Article 26:

If, pursuant to the Convention, personal data are supplied under the conditions provided by the domestic laws, the following additional provisions shall apply, subject to the legal provisions in effect for each Contracting State:

• (a) The receiving agency may use such data only for the stated purpose and subject to the conditions prescribed by the supplying agency.
• (b) The receiving agency shall on request inform the supplying agency about the use of the supplied data and the results achieved thereby.
• (c) Personal data may be supplied only to the competent agencies. Any subsequent supply to other agencies may be effected only with the prior approval of the supplying agency.
• (d) The supplying agency shall be obliged to ensure that the data to be supplied are accurate and that they are necessary for and proportionate to the purpose for which they are supplied. Any bans on data supply prescribed under applicable domestic law shall be observed. If it emerges that inaccurate data or data which should not have been supplied have been supplied, the receiving agency shall be informed of this without delay. That agency shall be obliged to correct or erase such data.
• (e) Upon application the person concerned shall be informed of the supplied information relating to him and of the use to which such information is to be put. There shall be no obligation to furnish this information if on balance it turns out that the public interest in withholding it outweighs the interest of the person concerned in receiving it. In all other respects, the right of the person concerned to be informed of the existing data relating to him shall be governed by the domestic law of the Contracting State in whose territory the application for the information is made.
• (f) The receiving agency shall bear liability in accordance with its domestic laws in relation to any person suffering unlawful damage as a result of the supply under the exchange of data pursuant to this Convention. In relation to the damaged person, that agency may not plead to its discharge that the damage had been caused by the supplying agency.
• (g) If the domestic law of the supplying agency contains special rules for the erasure of the personal data supplied, that agency shall inform the receiving agency accordingly. Irrespective of such law, supplied personal data shall be erased once they are no longer required for the purpose for which they were supplied.
• (h) The supplying agency and the receiving agency shall be obliged to keep official records of the supply and receipt of such data.
• (i) The supplying agency and the receiving agency shall be obliged to take effective measures to protect the personal data supplied against unauthorised access, unauthorised alteration and unauthorised disclosure.