Double Taxation Relief (Taxes on Income) (State Of Kuwait) Order 2011.

• Statutory Instrument No.: 21/2011
• Published date: 21 January 2011

S.I. No. 21 of 2011

DOUBLE TAXATION RELIEF (TAXES ON INCOME) (STATE OF KUWAIT) ORDER 2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 21st January, 2011.

WHEREAS it is enacted by section 826 (1) (as substituted by section 35 of the Finance Act 2007 (No. 11 of 2007)) of the Taxes Consolidation Act 1997 (No. 39 of 1997) that where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to affording relief from double taxation in respect of income tax, corporation tax in respect of income and chargeable gains, capital gains tax or any taxes of a similar character imposed by the laws of the State or by the laws of that territory and, in the case of taxes of any kind or description imposed by the laws of the State or the laws of that territory, in relation to exchanging information for the purposes of the prevention and detection of tax evasion or granting relief from taxation under the laws of that territory to persons who are resident in the State for the purposes of tax, and that it is expedient that those arrangements should have the force of law, and that the order so made is referred to in Part 1 of Schedule 24A of the Taxes Consolidation Act 1997 , then, subject to section 826 of that Act, the arrangements shall, notwithstanding any enactment, have the force of law as if such order were an Act of the Oireachtas on and from the date of the insertion of a reference to the order into Part 1 of Schedule 24A:

AND WHEREAS it is further enacted by section 826 (6) of the Taxes Consolidation Act 1997 that where such an order is proposed to be made, a draft of the order shall be laid before Dáil Éireann and the order shall not be made until a resolution approving of the draft has been passed by Dáil Éireann:

AND WHEREAS a draft of the following Order has been laid before Dáil Éireann and a resolution approving of the draft has been passed by Dáil Éireann:

NOW, the Government, in exercise of the powers conferred on them by section 826 (1) (as substituted by section 35 of the Finance Act 2007 (No. 11 of 2007)) of the Taxes Consolidation Act 1997 (No. 39 of 1997) hereby order as follows:

1. This Order may be cited as the Double Taxation Relief (Taxes on Income) (State Of Kuwait) Order 2011.

2. It is declared—

(a) that the arrangements specified in the Agreement, the text of which is set out in the Schedule to this Order, have been made with the Government of the State of Kuwait in relation to—

(i) affording relief from double taxation and the prevention from fiscal evasion with respect to income tax, corporation tax in respect of income and chargeable gains, capital gains tax and any taxes of a similar character imposed by the laws of the State or by the laws of the State of Kuwait, and

(ii) in the case of taxes of any kind or description imposed by the laws of the State or the laws of the State of Kuwait, exchanging information for the purposes of the prevention and detection of tax evasion and granting relief from taxation under the laws of the State of Kuwait to persons who are resident in the State for the purposes of tax,

and

(b) that it is expedient that those arrangements should have the force of law.

SCHEDULE

AGREEMENT

BETWEEN

THE GOVERNMENT OF IRELAND

AND

THE GOVERNMENT OF THE STATE OF KUWAIT

FOR THE AVOIDANCE OF DOUBLE TAXATION

AND THE PREVENTION OF FISCAL EVASION

WITH RESPECT TO TAXES ON INCOME

The Government of Ireland and the Government of the State of Kuwait,

Desiring to promote their mutual economic relations through the conclusion between them of an agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,

Have agreed as follows:

Article 1

Persons Covered

This Agreement shall apply to persons who are residents of one or both of the Contracting States.

Article 2

Taxes Covered

1. This Agreement shall apply to taxes on income imposed by each Contracting State irrespective of the manner in which they are levied.

2. There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property.

3. The existing taxes to which this Agreement shall apply are in particular:

a) in the case of Kuwait:

(1) the corporate income tax;

(2) the contribution from the net profits of the Kuwaiti shareholding companies payable to the Kuwait Foundation for Advancement of Science (KFAS);

(3) the Zakat;

(4) the tax subjected according to the supporting of national employee law;

(hereinafter referred to as “Kuwaiti tax”);

b) in the case of Ireland:

(1) the income tax;

(2) the income levy;

(3) the corporation tax;

(4) capital gains tax;

(hereinafter referred to as “Irish tax”).

4. This Agreement shall apply also to any identical or substantially similar taxes which are imposed under the laws of a Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in their respective taxation laws.

Article 3

General Definitions

1. For the purposes of this Agreement, unless the context otherwise requires:

a) the terms “a Contracting State” and “the other Contracting State” mean Ireland or Kuwait, as the context requires;

b) the term “Kuwait” means the territory of the State of Kuwait including any area beyond the territorial sea which in accordance with international law has been or may hereafter be designated, under the laws of Kuwait, as an area over which Kuwait may exercise sovereign rights or jurisdiction;

c) the term “Ireland” includes any area outside the territorial waters of Ireland which has been or may hereafter be designated, under the laws of Ireland concerning the Exclusive Economic Zone and the Continental Shelf, as an area within which Ireland may exercise such sovereign rights and jurisdiction as are in conformity with international law;

d) the term “person” includes an individual, a company and any other body of persons, but does not include a partnership other than one deriving its status from Kuwaiti law and which is treated as a taxable entity under the laws of Kuwait;

e) the term “national”, in relation to a Contracting State, means:

(1) any individual possessing the nationality or citizenship of that Contracting State;

(2) any legal person, partnership or association deriving its status as such from the laws in force in that Contracting State;

f) the term “company” means any body corporate or any entity which is treated as a body corporate for tax purposes;

g) the term “enterprise” applies to the carrying on of any business;

h) the terms “enterprise of a Contracting State” and “enterprise of the other Contracting State” mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;

i) the term “international traffic” means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;

j) the term “tax” means Irish tax, or Kuwaiti tax, as the context requires;

k) the term “competent authority” means:

(1) in the case of Kuwait: the Minister of Finance or an authorised representative of the Minister of Finance;

(2) in case of Ireland: the Revenue Commissioners or their authorised representative;

l) the term “business” includes the performance of professional services and of other activities of an independent character.

2. As regards the application of this Agreement at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State for the purposes of the taxes to which this Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.

Article 4

Resident

1. For the purposes of this Agreement, the term “resident of a Contracting State” means:

a) in the case of Kuwait:

(1) an individual who has his domicile in Kuwait and is a Kuwaiti national or an individual who under the laws of Kuwait is liable to tax in Kuwait but does not include any individual who is liable to tax in Kuwait in respect only of income from sources in Kuwait;

(2) a company which is incorporated in Kuwait;

b) in the case of Ireland:

any person who under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and includes that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State.

2. For the purposes of paragraph 1, a resident of a Contracting State shall include all of the following:

a) the Government of that State;

b) any Governmental institution created in that Contracting State under public law such as a corporation, Central Bank, fund, authority, foundation, agency or other similar entity, which is wholly-owned and controlled directly by the Government of that Contracting State;

c) any entity established in that State all the capital of which has been provided by that State or any governmental institution, referred to in subparagraph b), together with other states.

3. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:

a) he shall be deemed to be a resident only of...