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Luxembourg – Germany: Tax Treaty

CONVENTION BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND THE GRAND DUCHY OF LUXEMBOURG FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE ESTABLISHMENT OF RULES OF RECIPROCAL ADMINISTRATIVE AND LEGAL ASSISTANCE WITH RESPECT TO TAXES ON INCOME AND CAPITAL, BUSINESS TAX AND LAND TAX

Article 1

This Convention shall apply to taxes (including surcharges on these taxes) which, under the legislation of each of the two Contracting States, are imposed directly on income or capital or to business tax or land tax on behalf of the Contracting States, of its Lands (Länder), of its municipalities, or of groups of municipalities.

The taxes which are the subject of this Convention are :

in the Federal Republic of Germany:

  • the income tax (Einkommensteuer);
  • the corporation tax (Körperschaftsteuer);
  • the Berlin emergency aid tax (Abgabe Notopfer Berlin);
  • the capital tax (Vermögensteuer);
  • the business tax (Gewerbesteuer);
  • the land tax (Grundsteuer);

in the case of the Grand Duchy of Luxembourg:

  • the income tax (Einkommensteuer);
  • the corporation tax (Körperschaftsteuer);
  • the directors’ tax (besondere Steuer von Tantiemen);
  • the capital tax (Vermögensteuer);
  • the business tax (Gewerbesteuer);
  • the land tax (Grundsteuer).

This Convention shall also apply to any identical or substantially similar taxes which are subsequently imposed in either Contracting State after the date of signature of the present Convention.

The competent authorities of the Contracting States shall notify each other of any changes which are made in their respective taxation laws, regarding the introduction of new taxes, substantial modifications in existing taxes and the abolishment of taxes, covered under this Convention.

Article 2

In this Convention, unless the context otherwise requires:

the term “person” comprises individuals, companies and unincorporated bodies of persons and detached property which are treated as taxable entities under the tax laws of the respective Contracting States;

the term “permanent establishment” means a fixed place of business in which the business of the enterprise is wholly or partly carried on;

a permanent establishment shall include especially :

  • a place of management,
  • a branch,
  • an office,
  • a factory,
  • a mine, quarry or other place of extraction of natural resources,
  • a building site or construction or assembly project which exists for more than six months.

The term “permanent establishment” shall not be deemed to include:

  • the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
  • the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
  • the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing or manufacturing by another enterprise;
  • the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
  • the maintenance of a fixed place of business solely for the purpose of advertising, for the supply of information, for scientific research or for similar activities, which have a preparatory or auxiliary character, for the enterprise.

A person acting in a Contracting State on behalf of an enterprise of the other Contracting State — other than an agent of an independent status to whom subparagraph (d) applies — shall be deemed to be a permanent establishment in the first-mentioned State if he has, and habitually exercises in that State, an authority to conclude contracts in the name of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise.

An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where such persons are acting in the ordinary course of their business.

The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting 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;

the term “competent authority” means in the case of the Federal Republic of Germany, the Federal Minister of Finance and, in case of the Grand Duchy of Luxembourg, the Minister of Finance or his authorized representative;

the term “nationals” means:

  • in respect of the Federal Republic of Germany:
    all Germans within the meaning of paragraph 1 of Article 116 of the Constitution of the Federal Republic of Germany (Grundgesetz);
  • in respect of the Grand Duchy of Luxembourg:
    all persons of Luxembourg nationality.

The term “nationals” also includes legal persons constituted in accordance with the law in force in either Contracting State;

The term “enterprise of a Contracting State” or “enterprise of the other State” means, as the context requires, an industrial or commercial enterprise or undertaking carried on by a resident of the Federal Republic of Germany and an industrial or commercial enterprise or undertaking carried on by a resident of the Grand Duchy of Luxembourg.

As regards the application of this Convention by a Contracting State any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes which are the subject of this Convention.

Article 3

For the purposes of this Convention, an individual is a resident of the Contracting State in which he has a permanent home or dwelling available to him under the circumstances justifying the assumption that he will retain and use it.

Where an individual does not possess a dwelling under the circumstances referred to in paragraph 1 in either Contracting State but has an habitual abode in one of the States, he shall be deemed to have his dwelling for the purposes of this Convention in that State. An individual has his habitual abode (gewöhnlicher Aufenthalt) in a Contracting State if he resides there under circumstances justifying the assumption that he is not merely staying temporarily in that State.

Where by reason of the provisions of the preceding paragraphs an individual is a resident of both Contracting States, he shall be deemed to be a resident, within the meaning of Articles 4 to 19 of this Convention, of the Contracting State with which his personal and economic relations are closest (centre of vital interests). If the centre of his vital interests cannot be determined, the competent authorities of the Contracting States shall settle the question by mutual agreement in accordance with Article 26.

If an individual has, on land, neither a dwelling under the provisions referred to in paragraph 1 nor an habitual abode within the meaning of paragraph 2, but regularly resides on board a ship belonging to an enterprise, he shall for the purposes of this Convention be deemed to have his residence in the Contracting State in which the place of management of the enterprise is situated.

For the purposes of this Convention, a legal entity shall be deemed to be a resident of the Contracting State in which its place of management is situated. If its place of management is not situated in either Contracting State it shall be a resident of the Contracting State in which its legal seat is situated.

For the purposes of this Convention, the place of management shall be the place where the centre of effective management is situated. If the place of management of a shipping enterprise is situated on board a ship, the place where the ship’s home harbour is situated shall be deemed to be the place of management for the purposes of this Convention.

Article 4

1.Where a resident of a Contracting State derives income from immovable property (including property accessory to immovable property) situated in the other State, the said income shall be taxable in the latter State.

2.The provisions of paragraph 1 shall also apply to income derived from the direct use or from the letting of immovable property or the use in any other form of such property, including income from agricultural or forestry enterprise. It shall especially apply to income from the rights to variable or fixed payments as consideration for the working of natural resources or to gains from the alienation of immovable property.

Article 5

1.Where a resident of a Contracting State derives profits as an entrepreneur or a co-entrepreneur from an industrial or commercial enterprise whose activities extend to the territory of the other Contracting State, the said profits shall be taxable in the latter State only in so far as it is attributable to a permanent establishment of the enterprise which is situated there.

2.In this connection, there shall be attributed to such permanent establishment the profits which it might be expected to make if it were an independent enterprise engaged in the same or similar activities under the same or similar conditions and carrying on its activities wholly independently.

3.The provisions of paragraph 1 shall also apply to the profits derived from the direct exploitation as well as to income derived from letting, leasing or any other way of exploiting the industrial or commercial enterprise, and also for profits or gains from the total or partial alienation of the enterprise, of a separate part of the enterprise or of assets which have pertained to the enterprise.

Article 6

Where an enterprise of one of the Contracting States, by reason of its participation in the management or financial structure of an enterprise of the other Contracting State, agrees to, or imposes on, the latter enterprise commercial or financial conditions which differ from those which would be made with an independent enterprise, then any profits which would normally have accrued to one of the enterprises but which by reason of those conditions have not so accrued, may be included in the profits of that enterprise and taxed accordingly.

The provisions of paragraph 1 shall likewise apply where the same person participates directly or indirectly in the management, control or capital of two enterprises.

Article 7

Where a resident of a Contracting State derives profits as an entrepreneur or co-entrepreneur from the operation of ships or aircraft belonging to an enterprise having its place of effective management in one of the Contracting States, the said profits shall be taxable only in the State in which the place of effective management of the enterprise is situated.

To the extent the Contracting State in which the place of effective management is situated fails to exercise its right to tax an enterprise resident in the other State, the latter State shall be entitled to exercise that right.

Article 8

Where a resident of a Contracting State derives gains from the alienation of stock in a company which is a resident of the other State, the said profits shall be taxable by the former State.

The provisions of paragraph 1 shall not apply where a resident of a Contracting State has a permanent establishment in the other State and such gains are attributable to that establishment. In this case the profits shall be taxable in the other State.

Article 9

Where a resident of a Contracting State derives income in respect of present or past professional services or other independent activities of a similar character performed in the other State, the said income shall be taxable in the latter State. The foregoing shall be without prejudice to Article 12.

2.One is not considered to perform an independent activity in the other State unless he has for the purpose of performing his activities a fixed base regularly available to him in the other Contracting State. This condition, however, shall not apply to personal activities as exercised by artists, actors, athletes or entertainers.

3.The provisions of paragraph 3 of Article 5 shall apply as appropriate.

4.Where an individual who is a resident of a Contracting State receives from a legal entity which is a resident of the other State, directors’ fees or similar payments as a member of the Board of Directors, or as a non-managing member of similar boards, then the said fees shall be taxable in that other State.

Article 10

Where an individual who is a resident of a Contracting State derives income in the form of salaries, wages and similar remuneration in respect of present or past employment exercised in the other State, the said income shall be taxable in the latter State.

2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State, if:

  • the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the calendar year concerned, and
  • the remuneration for his employment during this period is paid by an employer who is not a resident of the other State, and
  • the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.

3. Where an individual exercised an employment continuously or predominantly aboard a ship or aircraft, then the said employment shall be deemed to be exercised in the Contracting State in which the place of effective management of the enterprise is situated. In case the State in which the place of effective management is situated fails to tax the income derived from such employment, the said income shall be taxable in the State of which the employee is a resident.

Article 11

1. Where an individual who is a resident of a Contracting State receives income in the form of salaries, wages, or similar remuneration from one of the two States of from the Lands (Länder), municipalities or groups of municipalities or from other legal entities incorporated under the public law of one of the two States, the said income shall be taxable in the State from whose public funds it is paid. If, however, such individual is a national of the State of which he is a resident but not at the same time a national of the State from whose public funds the income is paid, and if he performs his activity in the State of which he is a resident, the income shall be taxable in the State of which the recipient is a resident.

2. With regard to remuneration for present or past services rendered in connection with trade or profit-seeking business carried on by a Contracting State or by its political subdivisions or by a body incorporated under public law, the provisions of Article 10 shall apply.

Article 12

1. Where an individual who is a resident of a Contracting State receives income in the form of unemployment salary, retirement pension, widow’s or orphans’ pension or similar recurrent payments or benefits in money’s worth in respect of past services rendered, the said income shall be taxable in the State of which the recipient is a resident.

2. Notwithstanding the provisions of paragraph 1, unemployment salaries, retirement pensions, widow’s or orphans’ pensions or similar recurrent payments or benefits in money’s worth in respect of past services paid by one of the two States or by the Lands (Länder), municipalities or groups of municipalities or other legal entities incorporated under public law of one of the two States to its employees or their survivors, directly or through an institution established for that purpose and incorporated under public law, shall be taxable by that State.

3. The provisions of 2 shall also apply to pensions, life annuities and other recurrent or non-recurrent payments made by a Contracting State or by some other legal entities incorporated under either public or private law of that State as compensation for injury or damage resulting from military action or political persecution.

Article 13
  1. Where a resident of one of the Contracting States receives dividends from the other Contracting State, such dividends may be taxed in the Contracting State of which the recipient is a resident.
  2. If in the other Contracting State the tax on dividends is subject to a tax collected by deduction (at source) the right to make such a tax deduction shall not be affected.
  3. The tax deducted at source under paragraph 2 shall not exceed 15% of the dividends.
  4. The tax which is deducted at source under paragraph 2 shall not, however, exceed 10% of the dividends if these are paid by a company which is a resident of one of the Contracting States to a company which is a resident of the other State, and which owns at least 25% of the voting stock of the former company.
  5. The provisions of paragraphs 1 to 4 shall not apply where a resident of a Contracting State has a permanent establishment in the other Contracting State and realizes the dividends through that permanent establishment. In such a case the dividends may be taxed in the other State.
Article 14
  1. Where a resident of a Contracting State receives interest from the other Contracting State, such income shall be taxed in the Contracting State of which the recipient is a resident.
  2. The provisions of paragraph 1 shall not apply if the recipient of the interest, being a resident of a Contracting State, has a permanent establishment in the other Contracting State and realizes the income through that permanent establishment. In such a case the interest may be taxed in the other Contracting State in which the permanent establishment is located.
  3. The term “interest” as used in this Article means income from Government securities, bonds or debentures, whether or not secured by mortgage, and whether or not carrying a right to participate in profits, and 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.
Article 15
  1. Where a resident of a Contracting State receives income from the other Contracting State in the form of royalties or other payments of any kind paid as consideration for the use or right to use, any copyrights, patents, registered designs, manufacturing processes, trademarks or similar rights (other than rights pertaining to the working of natural resources), the said income may be taxed in the Contracting State of which the recipient is a resident.
  2. There shall be treated as royalties all rents and similar payments received as consideration for the use of cinematograph films (including films used for television broadcasts), or the right to use industrial, commercial or scientific equipment or for information concerning industrial experience.
  3. If, however, in the other Contracting State the tax on royalties or similar remuneration is collected by deduction (at source), the right to make such tax collection shall not be affected. The tax deducted at source may not, however, exceed 5% of the royalties or other remuneration.
  4. The provisions of paragraph 1 shall also apply to gains derived from the alienation of the rights referred to therein.
  5. The provisions of paragraphs 1 to 4 shall not apply where a resident of a Contracting State has a permanent establishment in the other Contracting State and realizes the royalties through that permanent establishment. In such a case the royalties may be taxed in the State in which the permanent establishment is located.
Article 16

Items of income of a resident of a Contracting State which are not expressly mentioned in the foregoing Articles of this Convention may be taxed only in that State.

Article 17

Salaries, wages and similar remuneration, paid to a professor or teacher who is a resident of a Contracting State for teaching at a university, college, or school in the other Contracting State during a period of temporary residence not exceeding two years, shall be taxed in only the Contracting State of which the recipient is a resident.

Article 18

A student, business or other apprentice who is a resident of one of the Contracting States, who is present in the other Contracting States solely for the purpose of his education or training, shall not be taxed in that other State in respect of sums which he receives from outside that State for his maintenance, study, or training.

Article 19

1. Where the capital of a resident of one of the Contracting States consists of:

  • capital represented by immovable property (including accessories thereto), or
  • capital represented by property forming part of an industrial or commercial enterprise,

the said capital may be taxed by the State which is entitled under this Convention to tax the income derived therefrom.

2. All other elements of capital of a resident of a Contracting State shall be taxable only in that State.

Article 20

1. If the State of residence has the right to tax income or capital by virtue of the preceding Articles then the other State shall not tax such income or capital. The foregoing shall be without prejudice to the provisions of paragraph 2 of Article 13 and paragraph 3 of Article 15.

2. There shall, unless paragraph 3 applies, be excluded from the tax base any income or capital for purposes of taxation in the State of residence, which, by virtue of the preceding Articles, may be taxed in the other State. The taxes on income and capital, which may be taxed by the State of residence shall, however, be levied at the rate applicable to the taxpayer’s total income or total capital. In the case of dividends, sentences 1 and 2 shall only apply to dividends which are paid to a corporation (Kapitalgesellschaft) by a corporation resident in the other State, at least 25% of the voting shares of which are owned by the first-mentioned corporation. There shall also be excluded from the tax base of the State of residence any share holding the dividends from which are excluded, or would be excluded if distributed, from the tax base in accordance with sentence 3.

3. In the case of dividends which are not excluded from the tax base in accordance with sentence 3 of paragraph 2 and in the case of royalties the tax, computed on the basis of an average rate of tax on such income and levied thereon in the State of residence, shall be reduced by the withholding tax levied in the other State.

Article 21

Nothing in this Convention shall affect any additional exemptions to which members of diplomatic or consular missions are entitled under the general rules of international law or under the provisions of special agreements. Where, owing such additional exemptions, income and capital are not taxable in the receiving State, the sending State shall retain the right of taxation.

Article 22

1. Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Convention, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident.

2. The competent authority referred to in paragraph 1 shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of double taxation.

Article 23

1. The two Contracting States shall render each other administrative and legal assistance in assessing and collecting the taxes specified in Article

2. For this purpose the competent tax authorities of both Contracting States shall exchange such information as is necessary for the carrying out of this Convention and, in particular, for preventing tax evasion. The competent tax authorities are not obliged to supply information which cannot be given on the basis of data in the possession of the taxation authorities and which would necessitate special inquiries.

3. Any information so exchanged by virtue of this Article shall be treated as secret but may be disclosed to any persons or authorities statutorily concerned with the assessment or collection of the taxes which are the subject of this Convention. Such persons and authorities shall be under the same obligations as the competent tax authorities.

4. In no case shall the provisions of paragraph 1 be construed so as to impose on one of the Contracting States the obligation:

  • to carry out administrative measures at variance with the laws or the administrative practice of its own or of the other Contracting State;
  • to supply particulars which may not be demanded under the statutory provisions of that or of the other Contracting State.

5. No information shall be exchanged which would disclose any industrial, commercial or professional secret.

6. Information may be refused for reasons of public policy.

Article 24

1. The two Contracting States shall render each other aid and assistance in collecting, in accordance with their statutory provisions, the taxes specified in Article 1, including surtaxes, overdue payments, interest and costs, where such sums are finally due under the laws of the applicant State.

2. Applications shall be accompanied by such documents as are required under the laws of the applicant State to establish that the sums to be collected are finally due.

3. Upon receipt of the said documents, service shall be effected and measures for collection and recovery shall be taken in the State applied to in accordance with the laws governing the collection and recovery of its own taxes. In particular, writs of execution shall be drawn in the form prescribed by the statutory provisions of that State.

4. In case of tax claims which are not yet final the creditor State may, in order to protect its rights, request the other State to take such interim measures as are lawful under the statutory provisions of the latter State.

Article 25

1. The nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.

2. Stateless persons shall not be subjected in a Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.

3. The taxation of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities.

This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.

4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of that first-mentioned State are or may be subjected.

5. In this Article the term “taxation” means taxes of every kind and description.

Article 26

1. The competent authorities of the two Contracting States shall take such administrative measures as are necessary for carrying out the provisions of this Convention, in particular with respect to the Articles 13, 23 and 24.

2. The competent authorities of the Contracting States may communicate with each other directly to discuss any questions arising out of this Convention.

3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Convention, and to remove any hardships which may occur through double taxation in cases not provided for in this Convention.

Article 27

This Convention shall apply to taxes levied for the periods subsequent to 31 December 1956.

Article 28

1. This Convention shall be ratified and the instruments of ratification shall be exchanged at Bonn as soon as possible. The Convention shall enter into force one month after the exchange of the instruments of ratification.

2. The present Convention shall remain in force until denounced by one of the Contracting States. Either Contracting State may denounce the Convention by giving written notice of termination through diplomatic channels, at least on or before 30 June of any calendar year but not earlier than 1961. In such event, this Convention shall apply for the last time to taxes levied for the calendar year in which the notice is given.

In witness whereof the Plenipotentiaries of both the Contracting States have signed this Convention and have affixed thereto their seals.

Done at Luxembourg, in duplicate, on 23 August 1958.

PROTOCOL

On signing the Convention between the Federal Republic of Germany and the Grand Duchy of Luxembourg for the avoidance of double taxation and concerning reciprocal administrative and legal assistance with respect to taxes on income and on capital, business tax and land tax, the undersigned Plenipotentiaries have agreed that the following provisions shall constitute an integral part of the Convention:

1. The Convention shall not apply to holding companies within the meaning of the special Luxembourg laws (currently the Acts of 31 July 1929 and 27 December 1937). Neither shall it apply to income derived from such holding companies by a resident of the Federal Republic of Germany or to share in such companies belonging to such persons.

2. The Convention shall not apply to nonrecurrent taxes on capital or on capital appreciation.

3. If any doubts arise with regard to future taxes to which the Convention shall apply, the competent authorities of the Contracting States shall come to an agreement with a view to interpreting or amending the Convention as may be considered necessary.

4. A common or interchange railway station established in one of the Contracting States, erected by reason of an agreement between both States, is not deemed to be a permanent establishment of a railway enterprise of the other Contracting State.

5. An insurance enterprise of a Contracting State shall be deemed to set up a permanent establishment in the other Contracting State if it receives premiums in the other State through an agent — other than an agent within the meaning of sub-paragraph (2)(d) of paragraph 1 of Article 2 — or insures risks in the said territory through such an agent.

6. The provisions of Article 4 shall also apply to rights which are governed by the provisions of the civil law of the Contracting States concerning immovable property.

7. Gains derived from the alienation of immovable property shall be deemed to include gains derived from the alienation of agricultural and forestry enterprises and speculative profits accruing from the alienation of immovable property. Annuities paid as consideration for the alienation of immovable property may be taxed only in the Contracting State of which the recipient is a resident.

Ad Article 5

8. The provisions of paragraph 1 of Article 5 shall apply mutatis mutandis to the Gewerbesteuer (business tax), levied on a base other than income.

9. The provisions of paragraph 1 of Article 5 shall not be so construed as to prevent a Contracting State from taxing in accordance with the Convention income accruing from its territory to a resident of the other Contracting State (e.g., income derived from immovable property, dividends, interest, royalties, etc.) and which is not attributable to a permanent establishment situated in the first-mentioned Contracting State.

10. Profits derived from the activities of a permanent establishment within the meaning of paragraph 2 of Article 5 shall, as a general rule, be determined on the basis of the balance sheet of the establishment. In this connection, account shall be taken of all expenditure attributable to the permanent establishment, including a portion of the general executive and administrative expenses of the enterprise; artificial shifting of profits, however, shall be excluded; the stipulation of interest or royalty payments between permanent establishments of the same enterprise shall especially be disregarded. In special cases the profits attributable to the permanent establishment may be determined by apportioning the total profit of the enterprise. The competent tax authorities of both Contracting States shall, at the earliest possible date, consult with each other to determine in which cases such an apportionment of profits is recommendable.

Ad Articles 5, 7 and 13

11. A silent partner shall be deemed to be an entrepreneur carrying on an industrial or commercial enterprise if his participation carries with it a share in the property of the enterprise. Where this is not the case, income derived from a participation as a silent partner shall be treated as dividends (Article 13).

12. The ownership of shares, mining shares (Kuxen), “jouissance” shares or similar securities or of shares in cooperative societies and private limited companies (Gesellschaften mit beschränkter Haftung) and investment trusts (Kapitalanlagegesellschaften) does not constitute the owner thereof as entrepreneur or co-entrepreneur of the enterprise. Income derived from these securities and shares shall be treated as dividends (Article 13).

Ad Article 7

13. The provisions of Article 7 shall also apply where an enterprise operates with chartered or hired ships or aircraft. It shall likewise apply to agencies, in so far as the activities of the agency are directly connected with the operation of the enterprise or with its feeder services.

14. The provisions of Article 7 shall also apply to participations of maritime shipping, of inland shipping or of air transport enterprises participating in a pool or a joint-venture operating organisation (Betriebsgemeinschaft).

15. The provisions of paragraph 1 of Article 7 shall apply mutandis mutandis to the Gewerbesteuer (business tax) which is levied on a base other than income.

Ad Article 9

16. The provisions of paragraph 4 of Article 9 shall apply only to fees received as consideration for supervisory activities. Fees received as consideration for other activities shall be subject to the provisions of Article 10 or 11.

Ad Article 10

17. The term “income from employment” means, in particular: salaries, emoluments, wages, directors’ fees, bonuses or other payments, benefits in money’s worth and compensation paid to individuals in connection with their employment.

18. Where the employer is a private enterprise (Personengesellschaft) the residence for the purposes of sub-paragraph (2) of paragraph 2 of Article 10 shall be deemed to be at the place of effective management.

19. The provisions of paragraph 1 of Article 10 do not apply to students of one of the Contracting States who, for a consideration, are for a period not longer than 183 days in any calendar year employed by an enterprise in the other Contracting State in order to gain practical experience. In this case the income shall be taxable in the first-mentioned State.

Ad Article 11

20. Wages, salaries and similar remuneration paid by the Deutsche Bundespost (Postal Administration of the Federal Republic of Germany), the Deutsche Bundesbahn (German Federal Railways), the Deutsche Bundesbank (German Federal Bank), the Société Nationale des Chemins de Fer Luxembourgeois (Luxembourg National Railway Company) and the Administration Luxembourgeoise des P.T.T. (Luxembourg Postal, Telephone and Telegraph Administration) shall be governed by the provisions of paragraph 1 of Article 11 and not by the provisions of paragraph 2 of Article 11.

Ad Article 13

21. Notwithstanding the provisions of paragraph 4 of Article 13, the tax which the Federal Republic of Germany levies on dividends which a corporation resident in the Federal Republic of Germany pays to a corporation resident in the Grand Duchy of Luxembourg may not exceed 25.75% of the gross amount of such dividends, if:

  • the rate of German corporation tax on distributed profits of a corporation resident in the Federal Republic of Germany is lower than that on undistributed profits and the difference between those two rates is 15 percentage points or more, and
  • the dividends are paid by a corporation resident in the Federal Republic of Germany to a corporation resident in the Grand Duchy of Luxembourg which either alone or within the meaning of Number 21 a of this protocol together with other corporation holds at least 25% of the voting shares in the first-mentioned corporation or which with regard to its holding benefits from an exemption from the normal Luxembourg tax on dividends equal to the exemption provided for under sentence 3 of paragraph 2 of Article 20.

21a. Where Luxembourg is the State of residence then pursuant to sentences 3 and 4 of paragraph 2 of Article 20, dividends and shares shall also be excluded from the tax base, if several corporations resident in the Grand Duchy of Luxembourg own at least 25% of the voting shares of a corporation resident in the Federal Republic of Germany and one of the participating corporations resident in the Grand Duchy of Luxembourg owns more than 50% of the voting shares of each of the participating corporations resident in the Grand Duchy of Luxembourg.

22. Where a contract provides for the payment of royalties or for other payments which are in fact hidden distributions of profits, the provisions of Article 13 shall apply.

Ad Articles 13, 14 and 15

23. Nothing in paragraphs 3 and 4 of Article 13, paragraph 1 of Article 14 or paragraph 3 of Article 15 shall preclude the collection of taxes deducted at source at the rates which would be applicable regardless of the Convention. If the tax so deducted exceeds that determined by applying the provisions of the Convention, the excess amount shall be refunded on application by the recipient of this income. A refund shall be granted provided that such application is made within a period of two years after the accrual of the income; in respect of income which accrued before the entry into force of the Convention, such period shall begin on the date of entry into force of the Convention.

24. Residents of the Federal Republic of Germany may only claim relief on the basis of the Convention in so far as this is possible under paragraphs 2 and 3 of Article 20.

25. Members of a diplomatic mission of a Contracting State are entitled in the receiving State to the benefits provided by Articles 8 to 19 if they are subjected to income tax and capital tax in the sending State with respect to income derived from the receiving State and to capital, within the meaning of paragraph 2 of Article 19.

26. International organizations, their organs and officials and the personnel of diplomatic or consular missions of third States shall not be entitled to the benefits provided by Articles 8 to 19 if they are not subject to income tax and capital tax in one of the two Contracting States in respect of income which they derive from the other State and of capital within the meaning of paragraph 2 of Article 19.

Ad Article 23

27. The obligation of the competent authorities to exchange information shall not apply to facts ascertained by the tax authorities from banks. Information may be exchanged, insofar as such facts are obtained from other sources.

Done at Luxembourg, in duplicate, on 23 August 1958.

EXCHANGE OF NOTES

I

Luxembourg, 23 August 1958

Your Excellency,

On the occasion of the signing this day of the Convention between the Federal Republic of Germany and the Grand Duchy of Luxembourg for the avoidance of double taxation and concerning reciprocal administrative and legal assistance with respect to taxes on income and capital, business tax and land tax, I have the honour, on behalf of the Government of the Federal Republic of Germany, to inform you of the following:

The Convention shall also apply to (Land) Berlin provided that the Government of the Federal Republic of Germany does not deliver a contrary declaration to the Government of the Grand Duchy of Luxembourg within three months from the date of entry into force of the Convention. Upon the application of the Convention to (Land) Berlin, references to the Federal Republic of Germany shall be deemed also to be references to (Land) Berlin.

If this proposal meets the approval of the Government of the Grand Duchy of Luxembourg, the present letter and your answer shall constitute an integral part of the Convention.

I avail myself of the opportunity to renew to Your Excellency the assurance of my highest consideration.

Karl Graf von Spreti

II

Luxembourg,
23 August 1958

Your Excellency,

I have the honour to acknowledge receipt of your letter of to-day, reading as follows:…

I have the honour to inform you that the Government of the Grand Duchy of Luxembourg agrees to the foregoing.

Please accept, Your Excellency, the assurance of my highest consideration.

Bech


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