At the moment of signing the Convention between the Republic of San Marino and the Kingdom of Belgium for the avoidance of double taxation and the prevention of tax fraud with respect to taxes on income, the undersigned have agreed upon the following provisions which shall form an integral part of the Convention.
It is understood that:
(1) The provisions of the Convention shall not prevent the application of the Agreement between the European Community and the Republic of San Marino providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments signed at Brussels on 7 December 2004.
(2) Ad Article 3, paragraph (1)(d):
In San Marino a trust shall be treated as a body corporate for tax purposes where and only to the extent in which such trust is subject to San Marino income tax.
(3) Ad Article 4:
The term "resident of a Contracting State" also means an institution or an organisation, established in accordance with the legislation of a Contracting State, which solely aims at awarding old age pensions, even if the concerned institution or organisation is exempted from tax in the State in which it is established.
(4) Ad Article 5:
Nothing in Article 5 shall prevent an insurance enterprise of a Contracting State from being deemed to have a permanent establishment in the other Contracting State when it collects premiums in that other State, or insures risks situated therein, through an intermediary or agent established there but not including any such agent as is mentioned in paragraph (6) of this Article unless he has, and habitually exercises, an authority to conclude contracts in the name of the enterprise.
(5) Ad Article 15, paragraph (1):
An employment is exercised in a Contracting State where the activity in respect of which the salaries, wages and other similar remuneration are paid, is effectively carried on in that State, this means where the employee is physically present in that State for the exercise of that activity.
(6) Ad Article 16, paragraph (2):
In the case of Belgium, remuneration received by a resident of a Contracting State in respect of his day-to-day activity as a partner of a company, other than a company with share capital, which is a resident of Belgium, may be taxed in accordance with the provisions of Article 15, as if such remuneration were remuneration derived by an employee in respect of an employment and as if references to the "employer" were references to the company.
(7) Ad Article 18, paragraph (2), Article 22, paragraph (3) and Article 24, paragraph (2)(a):
For the purposes of the application by Belgium of paragraph (2) of Article 18, paragraph (3) of Article 22 and paragraph (2)(a) of Article 24 of the Convention, income is taxed in San Marino when it is effectively included in the taxable base by reference to which the San Marino tax is computed. Income is therefore not taxed in San Marino when, being subjected to the tax treatment normally applicable to such income under San Marino law, it is either not taxable or exempted from tax in San Marino.
(8) In no case shall the provisions of the Convention be construed so as to prevent a Contracting State from applying the provisions of its national law relating to the prevention of tax fraud.
(9) The provisions of the Convention which are drafted according to the corresponding provisions of the OECD Model Convention on Income and on Capital shall generally be expected to have the same meaning as expressed in the OECD Commentary thereon. The understanding in the preceding sentence will not apply with respect to the following:
- (a) any reservations or observations to the OECD Model or its Commentary by either Contracting State;
- (b) any contrary interpretations in this Protocol;
- (c) any contrary interpretation in a published explanation by one of the Contracting States that has been provided to the competent authority of the other Contracting State prior to the entry into force of the Convention;
- (d) any contrary interpretation agreed on by the competent authorities after the entry into force of the Convention.
The OECD Commentary as it may be revised from time to time constitutes a means of interpretation in the sense of the Vienna Convention of 23 May 1969 on the Law of Treaties.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
DONE in duplicate at......, this twenty-first day of December 2005, in the Italian, French, Dutch and English languages, all four texts being equally authentic. In case of divergence between the texts the English text shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF SAN MARINO:
FOR THE GOVERNMENT OF THE KINGDOM OF BELGIUM: