Luxembourg – France: Tax Treaty
CONVENTION BETWEEN FRANCE AND THE GRAND DUCHY OF LUXEMBOURG FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE ESTABLISHMENT OF RULES OF RECIPROCAL ADMINISTRATIVE ASSISTANCE WITH RESPECT TO TAXES ON INCOME AND CAPITAL
1.The taxes to which this Convention applies are:
|(a)||in the case of the Grand Duchy of Luxembourg:
|(b)||in the case of France:
as well as all withholding taxes, “précomptes” and prepayments which are creditable against those taxes.
2. This Convention shall also apply to any other taxes or duties of a similar character which may be imposed by either Contracting State subsequently to the signature of this Convention.
3. It is agreed that if the tax legislation of either State is amended in a manner substantially affecting the nature or the character of the taxes referred to in paragraph 1 of this Article, the competent authorities of the two countries shall enter into consultation.
In this Convention:
1. The term “France”, used in a geographical sense, means only Metropolitan France and the overseas departments (Guadeloupe, Guyana, Martinique and Réunion).
The term “Luxembourg”, used in the same sense, means the Grand Duchy of Luxembourg.
2. The word “person” means:
|(b)||any body corporate;|
|(c)||any unincorporated body of individuals.|
|3.||(1) The term “permanent establishment” means a fixed place of business in which the business of the enterprise is wholly or partly carried on.|
|(2)||A permanent establishment shall include especially:
|(3)||The term “permanent establishment” shall not be deemed to include:
|(4)||A representative or an employee acting in one of the territories on behalf of an enterprise of the other territory other than a person to whom subparagraph (6) hereunder applies, shall be deemed to be a “permanent establishment” in the first-mentioned territory only if he:
|(5)||Insurance enterprises shall be deemed to have a permanent establishment in one of the two States if, through a representative not being a person to whom subparagraph (6) hereunder applies, they collect premiums in the territory of the said State or insure risks arising in that territory.|
|(6)||An enterprise of one of the territories shall not be deemed to have a permanent establishment in the other territory merely because it carries on business in that other territory through a broker, general commission agent or any other agent of a genuinely independent status, where such persons are acting in the ordinary course of their business as such.|
|(7)||The fact that a company which is resident in one of the Contracting States controls or is controlled by a company which is resident in the other State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.|
4. The residence of an individual is his normal place of residence, this being understood to mean his permanent home, or, failing such, the place of his principal residence.
A body corporate or an unincorporated body of individuals shall be deemed to be a resident of the State in which it has its place of effective management, or, where this is situated in neither of the Contracting States, its head office.
Persons resident on boats engaged in inland waterways navigation shall be deemed to be resident in that one of the two Contracting States of which they are nationals.
5. The term “competent authority” or “competent authorities” means, in the case of France, the Director-General of Taxes or his duly authorized representative and, in the case of Luxembourg, the Director of the Board of Direct Taxation and Excise or his duly authorized representative.
Income from immovable property and property accessory thereto, including profits from agricultural and forestry undertakings, shall be taxable only in the State in which the property is situated.
This provision shall also apply to profits derived from the alienation of such property.
1. Income from industrial, mining, commercial or financial enterprises shall be taxable only in the State in which a permanent establishment is situated.
2. Where an enterprise maintains permanent establishments in both Contracting States, each State may tax only the income derived from the operations of the permanent establishments situated in its territory.
3. Such taxable income may not exceed the amount of the industrial, mining, commercial or financial profits realized by the permanent establishment, including, where appropriate, any profits or advantages derived indirectly from that establishment or allotted or granted to third parties either by increasing or decreasing purchase or sale prices or by any other means. A proportion of the overhead expenses of the head office of the enterprise shall be charged against the earnings of the various permanent establishments.
4. The competent authorities of the two Contracting States shall, if necessary, agree on the formulation of rules of apportionment in default of regular accounts showing separately and exactly the profits accruing to the permanent establishments in their respective territories.
1. Where an enterprise of one of the two States, by virtue of its participation in the management or the capital of an enterprise in the other State, makes with or imposes upon the latter, in their commercial or financial relations, conditions differing from those which it would make with any other enterprise, all profits which would normally have appeared in the accounts of one of the enterprises but which have in this manner been transferred to the accounts of the other enterprise may be incorporated in the taxable profits of the former enterprise.
2. An enterprise shall be regarded as participating in the management or in the capital of another enterprise when the same persons participate directly or indirectly in the management or in the capital of each of the two enterprises.
Notwithstanding the provisions of Article 4 of this Convention profits derived by an enterprise of one of the two Contracting States from the operation of aircraft shall be exempt from taxation in the other Contracting State.
In the case of enterprises engaged in inland waterways navigation, tax shall be levied in the State in which the headquarters are situated or, if these headquarters are ambulatory. in the State in which the owner is resident, provided that the activities of the enterprise extend to the territory of that State.
1. A company which is resident in Luxembourg and which has a permanent establishment in France within the meaning of Article 2 paragraph 3 is subject to withholding tax in France in accordance with the provisions under French domestic law; however, it is agreed that the applicable rate is 5%.
2. A company resident in one of the two States shall not be liable in the other State to tax on income from movable capital by reason of its participation in the management or in the capital of a company resident in the other State or because of any other relation with that company, but profits distributed by the latter company and liable to tax on income from movable capital shall where appropriate be increased for the purpose of the assessment of tax, by any profits or advantages which the former company has indirectly derived from the latter company in the circumstances referred to in Articles 4 and 5.
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
|2.||(a) However, such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State; but the tax shall not exceed:
|(b)||The provisions of subparagraph (a)(1) of the present paragraph also apply when cumulative participations by several corporations resident in a Contracting State amount to at least 25% of the capital of the corporation resident in the other Contracting State and one of the corporations resident in the first-mentioned Contracting State holds more than 50% of the capital of each of the other aforementioned corporations resident in the first-mentioned Contracting State.|
|3.||(a) Dividends paid by a company resident in France, which would be entitled to a special tax credit (“avoir fiscal”) if they were received by residents of France, give right, when they are paid to individuals or legal persons resident in Luxembourg, to a gross payment from the French Treasury equal to this special tax credit, after deduction of tax in accordance with paragraph 2(a)(2) of this Article.|
|(b)||The provisions of subparagraph (a) shall apply to the following persons resident in Luxembourg:
|(c)||The gross payment mentioned in subparagraph (a) will be regarded as a dividend for the purposes of application of the provisions of the Convention as a whole.|
|4.||(a) A resident of Luxembourg who receives dividends from a company resident in France, can, if he is not entitled to the refund of paragraph 3, claim the refund of any “precompte” paid, withheld from these dividends, in such a case, by the distributing company. France may deduct tax from the amounts refunded in accordance with paragraph 2 of this Article.|
|(b)||The gross amount of the “précompte” refunded shall be regarded as a dividend for the purposes of application of the provisions of the Convention as a whole.|
5. The term “dividends” as used in this Article means income from shares, jouissance shares or rights, founders’ shares or other rights not being debt-claims, as well as income from other corporate rights assimilated to income from shares by the taxation law of the State where the company making the distribution is a resident. Notwithstanding Article 9, income of a profit-sharing sleeping partner in a commercial enterprise, is regarded in Luxembourg as dividends.
6. The provisions of paragraphs 1, 2, 3 and 4 shall not apply when the recipient of the dividends, being a resident of a Contracting State, has in the other Contracting State, of which the company paying the dividends is a resident, a permanent establishment with which the holding by virtue of which the dividends are paid is effectively connected. In such a case, the provisions of Article 4 shall apply.
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in the other State.
2. However, such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10% of the amount of the interest. France reserves the right to maintain the rate of 12% with respect to its tax on interest from negotiable bonds issued prior to January 1, 1965.
3. The term “interest” as used in this Article, means income from government securities, from bonds or debentures, whether or not secured by mortgage and from debt-claims of every kind, as well as all other income assimilated to income from money lent by the taxation law of the State in which the income arises.
4. The provisions of paragraphs 1 and 2 shall not apply if the recipient of interest, being a resident of a Contracting State, has in the other Contracting State in which the interest arises a permanent establishment with which the debt-claim from which the interest arises is effectively connected. In such a case, the provisions of Article 4 shall apply.
5. Interest shall be deemed to arise in a Contracting State if the payer is that State itself, a local authority, or a resident of that State. Where, however, the person paying the interest, whether or not he is a resident of a Contracting State, has in a Contracting State a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment is situated.
6. Where, owing to a special relationship between the payer and the recipient or between both of them and some other person, the amount of the interest paid, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the payment shall remain taxable according to the legislation of each Contracting State, due regard being had to the other provisions of this Convention.
1. Royalties paid for the use of immovable property or for the working of mines, quarries or other natural resources shall be taxable only in the Contracting State in which such property, mines, quarries or other natural resources are situated.
2. Copyright royalties and gains or royalties from the sale or granting the right to use patents, trade marks, secret processes and formulae paid in one of the Contracting States to a person having his residence in the other State shall be taxable in the latter State, provided that the recipient does not carry on business activities in the former State through a permanent establishment. The term “royalties” shall be understood to include income from the renting of cinematograph films.
3. Where, owing to a special relationship between the payer and the recipient or between both of them and some other person, the amount of royalties paid, having regard to the reason for which they are paid, exceeds the amount which would have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the payments shall be taxable either in accordance with Article 8 if it is subject to the provisions on dividends or on distributions by companies or failing this, in accordance with the other provisions of the Convention according to the sort of income.
In order to benefit from the provisions of Article 8, paragraphs 2, 3 and 4, Article 9, paragraph 2 and Article 10, paragraph 2 a resident of one of the Contracting States shall be required to produce to the tax authorities of the other Contracting State a certificate countersigned by the tax authorities of the first-mentioned State, specifying the income in respect of which the above-mentioned benefit is requested and certifying that this income and the payments referred to in Article 8 paragraphs 3 and 4 will be liable to direct taxation under the conditions of domestic law in force in the State where he is resident.
The competent authorities of the two Contracting States shall determine by mutual agreement the arrangements for the application of this Article.
Directors’ fees, attendance fees and other remunerations received by members of the “conseil d’administration” or the “conseil de surveillance” of joint stock companies shall be taxable in that one of the two States in which the company has its residence, subject to the provisions of Articles 14 and 15 infra in respect of remuneration received by them in any other capacity.
Remuneration for present or past service or work, paid in the form of salaries, pensions, wages or other emoluments by the State, by departments, by municipalities or by any other public corporation regularly constituted in accordance with the internal legislation of the Contracting State, shall be taxable only in the State of the debtor.
This provision shall also apply to benefits paid under a compulsory social security scheme.
Pensions and annuities arising in one of the Contracting States and paid to persons having their residence in the other State shall be exempt from taxation in the first State.
1. Subject to the provisions of Article 12 above, salaries, wages and other similar emoluments shall be taxable only in the State in whose territory the personal occupation from which the income is derived is carried on.
2. For the purposes of the preceding paragraph, a person shall not be deemed to be carrying on a personal occupation in one of the two States if he is temporarily present in that State for a period of less than 183 days as the employee of an establishment situated in the other State, provided that his remuneration continues to be chargeable to and paid by that establishment.
If such period exceeds a total of 183 days, tax shall be payable in the State in whose territory the employee is present on the aggregate remuneration received by him in respect of the activity he has carried on in that territory from the beginning of his employment therein.
3. A person having his residence in one of the Contracting States shall be exempt from tax in the other Contracting State in respect of services performed on board aircraft engaged in international transport.
1. Income from a liberal profession and, in general, all earned income other than income of the kinds referred to in Articles 11, 12, 13 and 14 of this Convention shall be taxable only in the State in which the personal occupation is carried on.
2. For the purposes of the preceding paragraph, a personal occupation shall be deemed to be carried on in one of the two States only if it has a fixed base in that State.
3. Liberal professions within the meaning of this Article shall be deemed to include occupations in the sciences and arts and in literature, education or teaching, as also the occupations of medical practitioner, lawyer, architect or engineer.
4. Notwithstanding the provisions of paragraphs 1 and 2 above, income derived from independent professional activities exercised in one of the two States by actors, singers or dancers or by orchestra conductors and musicians shall be taxable in that State even if these activities have no fixed base there.
Teachers and other members of the teaching profession of one of the two Contracting States visiting the territory of the other State for the purpose of teaching for a period not exceeding two years at a university, secondary or other school or any other educational institution shall be exempt in the latter State from tax on the remuneration received for such teaching during the said period.
Students and apprentices of one of the Contracting States temporarily staying in the other State for the sole purpose of study or occupational training shall not be liable to taxation of any kind in the latter State in respect of such allowances as they may receive from abroad.
Income not mentioned in the preceding Articles shall be taxable only in the State in which the recipient is resident.
1. Income which, in accordance with the provisions of this Convention, is liable to taxation only in one of the two States shall not be taxable in the other State, even by withholding at the source. However, each of the two States retains the right to assess the direct taxes payable on the portions of a taxpayer’s income taxable by it at the rate applicable to his entire income.
2. Notwithstanding the provisions of this Convention, each of the two Contracting States retains the right to tax in accordance with its statutory regulations, earnings from participations in enterprises constituted as private companies (société civile), partnerships (société en nom collectif), de facto partnerships (société de fait), special partnerships (association en participation) as well as earnings by limited partners from their participation in limited partnerships (société en commandite simple).
So far as concerns such earnings double taxation shall be avoided in the following manner:
|(a)||Luxembourg shall credit against the tax payable on earnings of this kind which have their source in France and are included in the tax base for individual income tax or the corporation tax, and to the extent of these taxes, any tax which has been levied on these earnings in France;|
|(b)||France shall credit against the taxes referred to in Article 1, paragraph 1(b) whose base includes these earnings and to the extent of such taxes, the taxes referred to in Article 1, paragraph 1(a) which these earnings shall bear in Luxembourg.|
|3.||(a) When a resident of Luxembourg is the recipient of income referred to in Article 8 and 9 and has been liable for French tax under the conditions of those Articles Luxembourg shall credit against the individual income tax or the corporation tax imposed on such income any tax which has been levied on those earnings in France. However, the credit may not exceed the fraction of the tax to which the recipient will be liable in Luxembourg by reason of the same income.The credit referred to in the preceding paragraph shall not apply in respect of French withholding tax sustained in the circumstances covered by Article 7 paragraph 1.
Dividends paid by a corporation resident in France to a corporation which is resident in Luxembourg and which has direct control of at least 25% of the capital of the first-mentioned corporation shall be exempted from tax in Luxembourg. In that case, the tax withheld in France shall neither be deductible from dividends exempted in Luxembourg nor credited against Luxembourg tax.
The provisions of the preceding paragraph shall also apply if the cumulative participations of several corporations resident in Luxembourg amount to at least 25% of the capital of the corporation resident in France and when one of the first-mentioned corporations controls more than 50% of the capital of each of the other corporations.
|(b)||France shall grant to residents of France who are recipients of the income mentioned in Articles 8 and 9 and have been liable for Luxembourg tax under the conditions of those Articles a tax credit, corresponding to the Luxembourg tax, which can be set against the French taxes whose base includes this income and to the extent of these taxes.|
As respects taxes on capital, the following provisions shall be applicable:
1. If the capital consists of:
|(a)||immovable property and its accessory;|
|(b)||commercial or industrial enterprises,|
the tax may be levied only in the Contracting State which, by virtue of the preceding Articles, is authorized to tax income derived from such property.
2. Participations in enterprises constituted as partnerships, limited partnerships, de facto partnerships and special partnerships shall be taxable only in the State in which a permanent establishment is situated.
3. For all other elements of capital, tax may be levied only in the State of residence. However, the value of household furniture shall be taxable in the State of the residence in which the furniture is used.
4. Each of the two States retains the right to assess the direct taxes payable on the portions of a taxpayer’s capital taxable by it at the rate applicable to his entire capital.
1. Nationals and companies or other bodies of one of the two Contracting States shall not be subjected in the other State to any taxation other or more burdensome than that to which nationals and companies or other bodies of that other State are subjected.
2. In particular, nationals of one of the two Contracting States who are taxable in the territory of the other State shall be entitled, under the same conditions as nationals of the latter State, to any exemptions, allowances, rebates and reductions granted in respect of family dependents in taxes or charges of any kind.
Similarly, where a taxpayer domiciled in France has a permanent establishment in Luxembourg, the provisions relating to the carryover of losses shall apply to the taxation of this establishment under the same conditions as for taxpayers domiciled in Luxembourg.
3. The term “nationals” means: in relation to France — all French subjects and French projected persons; in relation to Luxembourg — all Luxembourg subjects.
1. The competent authorities of the two States may either ex officio or upon request, and on a reciprocal basis, exchange such information, available under the taxation laws of the two States in the normal course of administration, as is necessary for a proper application of this Convention. Any information so exchanged shall be kept secret and shall not be disclosed to any persons other than those concerned with the assessment or collection of the taxes to which this Convention relates. No information which would disclose a trade, banking, industrial or professional secret or a trade process may be exchanged.
2. The provisions of this Article shall in no circumstances be construed as requiring either of the Contracting States to take administrative measures at variance with its regulations or administrative practices or contrary to its sovereignty, security, general interests or public policy, or to communicate particulars which are not procurable under its own laws and those of the applicant State.
1. The Contracting States undertake to lend each other support and assistance in the collection of the taxes dealt with in this Convention and in the collection of interest, costs, additional taxes and non-penal fines.
2. An application made for this purpose shall be accompanied by the documents required under the laws of the applicant State as evidence that the sums to be collected are finally due.
3. On receipt of these documents, writs shall be served and measures of recovery and collection instituted in the State applied to in accordance with the laws governing the recovery and collection of its own taxes. In particular, warrants for collection shall be rendered enforceable in the form prescribed by the laws of that State.
4. Tax debts to be recovered shall not be regarded as privileged debts in the State applied to.
5. Where tax debts are still subject to appeal, the creditor State, in order to protect its rights, may request the other State to serve a writ of execution or collection order on the debtor. Appeals against the claims for which enforcement has in this manner been sought shall lie only to the competent tribunal of the applicant State.
1. Where a taxpayer shows proof that as a result of measures taken by the tax authorities of the two Contracting States he has suffered double taxation in respect of the taxes dealt with in his Convention, he may submit a claim either to the competent authorities of the State in whose territory he has his residence or to those of the other State.
If the claim is considered justified, the competent authorities of the two States shall come to an agreement with a view to the equitable avoidance of double taxation.
2. The competent authorities of the two Contracting States may also come to an agreement with a view to the avoidance of double taxation in cases not provided for in this Convention and in cases in which the interpretation or application of this Convention gives rise to difficulty or doubt.
3. If it appears that agreement would be facilitated by negotiations, such negotiations shall be entrusted to a mixed commission composed of representatives of the administrations of the two States designated by the competent authorities.
1. At any time during the term of this Convention, either of the two Contracting States may express the desire to have the provisions of the Convention extended, either wholly or in part, with such amendments as may be deemed necessary, to any territory for the international relations of which France is responsible and which levies taxes of the same nature as those dealt with in this Convention.
2. Extensions of this Convention pursuant to paragraph 1 of this Article shall be affected by exchange between the Contracting States of diplomatic notes specifying the territory to which the provisions extended shall apply and the conditions of such extension.
Provisions extended by exchange of notes as aforesaid, either wholly or in part or with such amendments as may be necessary, shall apply to the specified territory with effect from the date indicated in the notes.
3. At any time after the expiry of a period of one year from the entry into force of an extension effected in accordance with paragraphs 1 and 2 of this Article, either of the Contracting States may, by notice in writing to the other Contracting State through diplomatic channels terminate the application of the provisions to any of the territories to which they may have been extended; in such case, the provisions shall cease to apply to that territory from January 1, following the date of the notice, it being understood that such termination shall not affect their application to France, to Luxembourg or to any other territory not mentioned in the notice to which they may have been extended.
4. When the provisions of the Convention cease to apply between France and Luxembourg, they shall also cease to apply to any territory to which they have been extended in accordance with this Article, except as otherwise expressly decided by the Contracting States.
5. For the purpose of the application of this Convention in any territory to which it has been extended, any reference in the Convention to France and Luxembourg shall be deemed to apply equally to the said territory.
1. This Convention shall be ratified and the instruments of ratification shall be exchanged at Luxembourg as soon as possible.
2. The Convention shall enter into force on the exchange of the instruments of ratification, it being understood that its provisions shall apply for the first time:
|(a)||as respects taxes withheld at the source, on income from the movable capital referred to in Article 8 — to the taxation of income paid from 1 January 1957; on the royalties specified in Article 10, paragraphs 2 and 3 — to the taxation of royalties paid from 1 January 1957;|
|(b)||as respects taxes on other income, to the taxation of income pertaining to the calendar year 1957 or to financial years ended in the course of that calendar year;|
|(c)||as respect the tax on capital, to taxes corresponding to the calendar year 1957.|
Where the information specified in Article 22 is exchanged as a matter of routine, it shall be furnished as it becomes available during the term of the Convention.
3. On the entry into force of this Convention, the Agreement constituted by the exchange of letters of 30 August 1906 and 19 September 1912 between the former Ministry of Alsace-Lorraine and the fiscal Division of the Grand Duchy of Luxembourg, and the agreement concluded on 16 January 1926 between the French and Luxembourg Governments shall cease to apply and shall no longer have effect.
This Convention shall remain in force indefinitely.
On or after 1 January 1963, however, either of the Contracting States may communicate to the other Contracting State through diplomatic channels during the first six months of each year, notice in writing of its intention to terminate the Convention. In such event the Convention shall cease to be operative from 1 January of the year following the date of notification, it being understood that its effect shall be limited, as respects annual taxes, to those established for the year in which notice was given or for the financial years ended in the course of that year.
In witness whereof the plenipotentiaries of the two States have signed this Convention and have thereto affixed their seals.
Done in Paris in duplicate, 1 April 1958.
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