美中∙税收协定∙技术说明

TREASURY DEPARTMENT TECHNICAL EXPLANATION OF THE AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF TAX EVASION WITH RESPECT TO TAXES ON INCOME	财政部对美利坚合众国政府与中华人民共和国政府 关于对收入避免双重征税和防止逃税 所签订协议的技术说明
GENERAL EFFECTIVE DATE UNDER ARTICLE 27: 1 JANUARY 1987	第27条规定的总体生效日期：1987年1月1日
The Agreement, an accompanying Protocol, and an exchange of letters were signed in Beijing on April 30, 1984. Hereafter, the term “Agreement” refers to the three documents. The term “Agreement” has the same meaning as “Treaty” or “Convention”, and the Agreement is subject to the same ratification requirements and has the same force as a Convention or Treaty.	本协议及其所附议定书和换文于1984年4月30日在北京签署。下文中术语“协议”指代此三份文件。术语“协议”与“协定”或“条约”具有相同的含义，协议与条约或协定遵循相同的批准要求并具有相同的效力。
The Agreement is based on the model income tax conventions published by the Organization for Economic Cooperation and Development in 1977, the United Nations in 1980, and the U.S. Treasury Department in 1981.	本协议基于经济合作与发展组织于1977年、联合国于1980年、美国财政部于1981年发布的所得税示范公约。
This technical explanation is an official guide to the Agreement. It reflects policies behind particular provisions as well as understandings reached with respect to the interpretation and application of the Agreement.	此技术说明是协议的官方指南。它表述支撑特定条款的各项政策以及就协议的解释和适用所达成的谅解。
TABLE OF ARTICLES	条款目录
Article 1--------------------------------------Persons Covered	第 1 条------------------------------涵盖人员
Article 2--------------------------------------Taxes Covered	第 2 条------------------------------涵盖税项
Article 3--------------------------------------Definitions	第 3 条------------------------------各项定义
Article 4--------------------------------------Residence	第 4 条------------------------------常住地
Article 5--------------------------------------Permanent Establishment	第 5 条------------------------------常设机构
Article 6--------------------------------------Income from Real Property	第 6 条------------------------------不动产收入
Article 7--------------------------------------Business Profits	第 7 条------------------------------营业利润
Article 8--------------------------------------Related Enterprises	第 8 条------------------------------关联企业
Article 9--------------------------------------Dividends	第 9 条------------------------------股息
Article 10------------------------------------Interest	第10条------------------------------利息
Article 11------------------------------------Royalties	第11条------------------------------特许使用费
Article 12------------------------------------Gains	第12条------------------------------收益
Article 13------------------------------------Independent Personal Services	第13条------------------------------独立性个人服务
Article 14------------------------------------Dependent Personal Services	第14条------------------------------依附性个人服务
Article 15------------------------------------Directors’ Fees	第15条------------------------------董事费
Article 16------------------------------------Artistes and Athletes	第16条------------------------------艺术家和运动员
Article 17------------------------------------Pensions and Annuities	第17条------------------------------退休金和养老金
Article 18------------------------------------Government Employees and Pensions	第18条------------------------------政府雇员及退休金
Article 19------------------------------------Teachers, Professors and Researchers	第19条------------------------------教师、教授、及研究人员
Article 20------------------------------------Students and Trainees	第20条------------------------------学生和实习生
Article 21------------------------------------Other Income	第21条------------------------------其它收入
Article 22------------------------------------Elimination of Double Taxation	第22条------------------------------消除双重征税
Article 23------------------------------------Nondiscrimination	第23条------------------------------无差别待遇
Article 24------------------------------------Mutual Agreement	第24条------------------------------双方认可
Article 25------------------------------------Exchange of Information	第25条------------------------------信息交换
Article 26------------------------------------Diplomats and Consular Officers	第26条------------------------------外交官和领事官员
Article 27------------------------------------Entry into Force	第27条------------------------------生效
Article 28------------------------------------Termination	第28条------------------------------终止
Protocol-------------------------------------of 30 April, 1984	议定书------------------------------1984年4月30日
Exchange of Letters---------------------of 30 April, 1984	换文---------------------------------1984年4月30日
ARTICLE 1 (Persons Covered)	第1条 （涵盖人员）
This article states the general rule that persons affected by the Agreement are residents of the United States or China or of both countries. The term “resident” is defined in Article 4. Certain articles may also apply to nonresidents; see, for example, Article 23, which concerns nondiscrimination, and Article 25, concerning exchanges of information. Article 1 is supplemented by Articles 1 and 2 of the Protocol.	本条陈述总体规则，受协议影响者是美国居民或中国居民或同时是两国居民的人。术语“居民”在第4条中有定义。某些条款也可能适用于非居民；例如关于无差别待遇的第23条以及关于信息交流的第25条。议定书第1条和第2条补充说明协议第1条。
Article 1 of the Protocol provides that the Agreement does not restrict any benefits provided by the laws of either Contracting State or by any other agreement between the Contracting States. This rule reflects the principle that a double taxation agreement should not increase the overall tax burden which would result in the absence of the Agreement. For example, if the Agreement permits a Contracting State to tax an item of income which under the law of that State is exempt from tax, the statutory exemption applies. A U.S. taxpayer, however, may not make inconsistent choices between the rules of the Internal Revenue Code (“the Code”) and the rules of the Agreement.	议定书第1条规定，本协议不限制缔约国任何一方的法律或缔约国之间的任何其它协议所提供的优惠。此规则体现的原则是，双重征税协议不应该增加无协议状态下的总体税负。例如，如果协议允许缔约国一方对根据该国法律免税的收入项目征税，那么适用法定免税。不过，在联邦税务法典（“法典”）的规则和协议的规则之间，美国纳税人不得作出不一致的选择。
Article 2 of the Protocol is a simplified version of the traditional “saving clause” which preserves the right of the United States to tax its citizens and residents under its domestic law. The rule is drafted unilaterally, as China does not tax on the basis of citizenship and does not consider such a provision necessary to preserve its taxation of, and implement the Agreement with respect to, Chinese residents. The reference to “citizens” of the United States is understood by the parties to include former citizens whose loss of citizenship had as one of its principal purposes the avoidance of U.S. tax. Such former citizens are taxable in accordance with section 877 of the Code. Certain benefits of the Agreement are available to U.S. residents, as defined in Article 4 of the Agreement. Those benefits are the right to a correlative adjustment of tax liability as provided in paragraph 2 of Article 8, the exemption from U.S. tax of Chinese social security benefits provided in paragraph 2 of Article 17, the provisions concerning government employees, teachers and students of Articles 18, 19 and 20, and the benefits of Articles 22, 23, 24 and 26 concerning, respectively, relief from double taxation, nondiscrimination, the mutual agreement procedure, and diplomats. Further, it is understood that the benefits of the provisions concerning relief from double taxation, nondiscrimination, and the mutual agreement procedure will also be available to nonresident U.S. citizens to the extent applicable under the specific terms of those articles.
ARTICLE 2 (Taxes Covered)	第2条 （涵盖税项）
Paragraph 1 of this article enumerates the existing taxes to which the Agreement applies in each Contracting State. In the United States, these are the Federal income taxes imposed by the Code. As explained in Article 3 of the Protocol, U.S. social security taxes are not covered by the Agreement. The personal holding company tax and the accumulated earnings tax are also not covered by the Agreement, except that they will not apply to a Chinese company which is wholly owned, directly or indirectly, by individual residents of China who are not U.S. citizens or by the Government of China or a wholly owned agency thereof.	本条第1项列举协议在缔约国各方适用的现行税种。在美国，这些是依据法典征收的联邦所得税。正如议定书第3条所述，美国的社会保障税金不在协议范围内。个人控股企业税和累积收益税也不在协议范围内，但它们不适用于由不是美国公民的中国居民个人或者由中国政府或其全资机构直接或间接全资拥有的中国企业。
The Chinese taxes covered by the Agreement are the individual income tax, the income tax concerning joint ventures with Chinese and foreign investment, the income tax concerning foreign enterprises, and the local income tax.
Paragraph 2 provides that the Agreement shall also apply to taxes imposed after the date of signature of the Agreement, provided that they are substantially similar to those enumerated in paragraph 1. The competent authorities agree to notify each other of substantial changes in their respective income tax laws.
ARTICLE 3 (Definitions)	第3条 （各项定义）
Article 3 defines some of the principal terms used throughout the Agreement. Unless the context otherwise requires, the terms defined in this article have a uniform meaning throughout the Agreement. A number of important terms are defined in other articles. For example, the term “resident of a Contracting State” is defined in Article 4, and the term “permanent establishment” is defined in Article 5. The terms “dividends,” “interest,” and “royalties” are defined in Articles 9, 10, and 11, respectively.	第3条定义整份协议中使用的一些主要术语。除非文本中另有所指，本条所界定的术语在协议中具有统一的含义。若干重要术语在其它条款中有定义。例如，术语“缔约国一方居民”在第4条中有定义，术语“常设机构”在第5条中有定义。术语“股息”、“利息”、“特许使用费”分别在第9&10&11条中有定义。
The geographical territory of the two Contracting States is defined to include their continental shelf areas to the extent consistent with international law and their respective domestic laws. Thus, for example, activities taking place on the seabed or subsoil beyond the territorial sea of the United States will be considered to take place within the United States for purposes of the Agreement, provided that the United States has jurisdiction over such areas in accordance with international law and U.S. domestic law. The United States will interpret this definition in accordance with section 638 of the Internal Revenue Code and the regulations thereunder. The “United States” does not include Puerto Rico, the Virgin Islands, Guam, or any U.S. territory or possession. The “People’s Republic of China” does not include Hong Kong, as Chinese tax laws are not in effect there. Moreover, in accordance with the Agreement between the United Kingdom and China on the future of Hong Kong, the taxes imposed by the Hong Kong Special Administrative Region will continue to be independent of the tax laws of the Central People’s Government, and therefore the Agreement will not apply to Hong Kong even after 1997.
The term “person” includes an individual, a company, a partnership, and any other body of persons. It also includes, as provided in Article 4 of the Protocol, an estate or a trust. The term “person” is important because the Agreement applies to “persons” who are residents of one or both Contracting States and residence in a State is defined in terms of “persons” meeting certain criteria. A “company” is any entity treated as a corporation for tax purposes.
The term “nationals” means individuals having the nationality of a Contracting State and legal entities deriving their status as such from the law in force in a State.
The competent authority in the case of China is the Ministry of Finance or its authorized representative and in the case of the United States is the Secretary of the Treasury or his authorized representative.
Paragraph 2 provides that, in the case of a term not defined in the Agreement, the domestic tax law of the State applying the Agreement shall control, unless the context requires a different interpretation or unless the competent authorities agree on a common meaning in accordance with paragraph 3 of Article 24 (concerning the mutual agreement procedure).
The Agreement does not include a definition of the term “international traffic” because that definition, as well as the substantive rules concerning the taxation of international shipping and air transport income, is contained in the Agreement Between the Government of the United States of America and the Government of the People’s Republic of China with Respect to Mutual Exemption From Taxation of Transportation Income of Shipping and Air Transport Enterprises, which was signed on March 5, 1982 and entered into force on September 23, 1983.
ARTICLE 4 (Residence)	第4条 （常住地）
This article defines those persons who are residents of a Contracting State and thus entitled to the benefits of the Agreement. The definition begins with a person’s liability to tax under domestic law. Paragraph 1 lists several criteria which may be used in domestic law to determine residence for tax purposes. Citizenship is not one of the criteria; thus a U.S. citizen resident in a third country is not treated as a U.S. resident for purposes of this Agreement. The reference to persons “liable to tax” is not meant to exclude organizations of either country which are tax-exempt under special provisions of its domestic law, such as charities. However, it would not include a person liable to tax only in respect of income from sources in the taxing country, such as a resident of a third country subject to tax in the United States or China only on a source basis. A U.S. partnership, estate or trust is a resident only to the extent that the income it derives is subject to tax either in the hands of the entity or of its partners or beneficiaries.	本条定义那些身为缔约国一方居民并因此有权享受协议优惠的人。该定义从个人在国内法下的纳税义务开始。第1项列出国内法中可用于确定税务住所的若干标准。公民身份不是标准之一；因此，就本协议而言，居住在第三国的美国公民不会被当作美国居民。提及“有纳税义务的”人并不意味着可排除掉一方国家中根据其国内法的特殊规定可免税的诸如慈善机构等组织。不过，居民不包括仅就来自征税国的收入负有纳税义务的人，比如在美国或中国仅基于收入来源而被征税的第三国居民。美国的合伙企业、遗产或信托仅在其取得的收入须由其自身或其合伙人或受益人纳税的限度内是居民。
Paragraph 2 provides that, where an individual is considered to be a resident of both Contracting States under their respective domestic laws, the competent authorities shall consult together to determine of which State the individual shall be a resident for purposes of the Agreement. In making that determination, the competent authorities will be guided by the rules of paragraph 2 of Article 4 of the United Nation’s Model Double Taxation Convention between Developed and Developing Countries. (See Article 5 of the Protocol.) Those rules are the same as the rules contained in the corresponding paragraph of the OECD and U.S. Models. The first test is where the individual has his permanent home. If he has a permanent home in both countries the second test is where his personal and economic ties are closer (center of vital interests). If that test is inconclusive, or if the individual does not have a permanent home in either State, the next test is his place of habitual abode. The fourth test is nationality. If the individual is a national of both States or of neither of them, the competent authorities are instructed to settle the issue so as to assign a single State of residence. Once established under this article, the residence of the individual remains the same for all purposes of the Agreement.
For U.S. tax purposes, a company is a resident of the United States if it is created or organized under the laws of a state or the District of Columbia. For Chinese tax purposes, a company is a resident of China if its place of management (head office) is in China. Under paragraph 3, where a company is a resident of both Contracting States under their respective domestic laws, the competent authorities will attempt to determine a single State of residence through consultations. However, it would not be the policy of the U.S. competent authority to agree to treat an entity incorporated in the United States as not a U.S. resident. If the competent authorities are unable to reach Agreement, the company will not be considered a resident of either State for purposes of enjoying benefits under the Agreement. Thus, for example, dividends paid to a resident of China by a dual resident company would be eligible for the reduced U.S. withholding rate of 10 percent. However, if a dual resident corporation paid a dividend to a U.S. resident, the statutory U.S. tax would apply with respect to that dividend. Dividends, interest or royalties arising in either Contracting State and paid to a dual resident corporation are not entitled to the reduced rates provided for in the Agreement.
Paragraph 4 deals with a case where a company is a resident of the United States for purposes of the Agreement, but is also a resident of a third country under another tax treaty between China and the third country (e.g., a corporation created under U.S. law but having its head office in Japan). Instead, the Agreement between China and the third country will prevail, and the company will be considered a resident of the third country and not of the United States for purposes of this Agreement. Thus, the company will receive the benefits of the other Agreement between China and the third country.
ARTICLE 5 (Permanent Establishment)	第5条 （常设机构）
The rules for taxation by a Contracting State of business income derived by a resident of the other State utilize the concept of a “permanent establishment.” This article illustrates that concept.	缔约国一方对另一方居民取得的营业收入征税的规则中有应用“常设机构”的概念。这里说明那条概念。
Paragraph 1 defines a permanent establishment in general terms as a fixed place of business through which the business of an enterprise is wholly or partly carried on.
Paragraph 2 contains an illustrative list of permanent establishments. These illustrations are the same as those in the U.S. Model. They are a place of management, a branch, an office, a factory, a workshop, and a place of extraction of natural resources, such as a mine, well, or quarry.
Subparagraph 3(a) provides that a construction site, assembly or installation project, or supervisory activities in connection with such a site or project, constitutes a permanent establishment if the site, project, or activities continue for more than six months. In such a case, a permanent establishment exists from the first day when work physically begins within the territory of the other Contracting State, including preparatory work. Each site or project and each enterprise is considered separately. A series of contracts or projects which are interdependent both commercially and geographically are to be treated as a single project for the purpose of applying the six month test. For example, a “turn-key” project in which a facility is constructed and equipment installed in it would be a single project. However, it is possible that a project which constitutes a permanent establishment for the general contractor may not be a permanent establishment for a subcontractor if the latter performs services there for less than six months. For example, a subcontractor could install equipment at one site for four months and provide supervisory services at a separate site for an unrelated contractor for three months without itself having a permanent establishment.
Subparagraph 3(b) provides that an installation, drilling rig or ship used to explore for or exploit natural resources constitutes a permanent establishment if it continues for more than three months. A series of projects or contracts will be interpreted in the same manner as in the case of construction sites.
Subparagraph 3(c) provides that the furnishing of services by an enterprise through employees or other personnel will constitute a permanent establishment of the enterprise in that other State when the activities in the other Contracting State continue for more than six months within a twelve month period.
Paragraph 4 identifies activities which may be carried on in a Contracting State which will not constitute a permanent establishment even if conducted through a fixed place of business. The activities enumerated are the same as in the U.S. Model. The use of facilities solely to store, display, or deliver goods belonging to an enterprise does not constitute a permanent establishment. Nor does the maintenance of a stock of goods belonging to the enterprise solely for the purpose of storage, display, delivery, or processing by another enterprise. An enterprise may maintain a fixed place of business solely to purchase goods or collect information or to carry on any other preparatory or auxiliary activity for the enterprise without being considered to have a permanent establishment. Any combination of the enumerated activities also does not constitute a permanent establishment, subject to the condition that the combined activity is of a preparatory or auxiliary character for the enterprise.
Paragraphs 5 and 6 concern the use of agents. Under paragraph 5, which is the same as in the U.S. Model, a dependent agent who acts on behalf of an enterprise and habitually exercises an authority to conclude contracts in the name of that enterprise is deemed to be a permanent establishment of that enterprise (whether or not there is a fixed place of business) unless the activities of the agent are limited to activities which would not constitute a permanent establishment under paragraph 4 if carried on directly by the enterprise. Paragraph 6 provides that an enterprise will not be considered to have a permanent establishment in the other State merely because it uses in that other State the services of an independent agent acting in the ordinary course of his business. However, an agent will not be considered independent if he acts wholly or almost wholly on behalf of that enterprise and it is shown that the transactions between the agent and the enterprise were not at arm’s length.
Paragraph 7 states that control of one company by another does not, in and of itself, constitute either company a permanent establishment of the other. The determination whether a subsidiary is a permanent establishment of its parent corporation or conversely, or whether two or more subsidiaries of the same corporation are permanent establishments of the parent or of each other is made by reference to the tests set out in paragraphs 1 through 6.
ARTICLE 6 (Income from Real Property)	第6条 （不动产收入）
Paragraph 1 provides that income derived by a resident of a Contracting State from real property situated in the other Contracting State may be taxed in the State where the property is situated. The United States may also tax such income of its citizens and residents in accordance with paragraph 3 of Article 1 (General Scope) of the Protocol.	第1项规定，缔约国一方居民从位于缔约国另一方的不动产取得的收入，可在不动产所在国被征税。美国还可以根据议定书第1条第3项（总体范围）对其公民和居民的该类收入征税。
Paragraph 2 provides that “real property” is defined in accordance with the law of the Contracting State where the property is situated. It, in any case, includes property accessory to real property, such as livestock and equipment used in agriculture and forestry, and payments for the use of natural resource deposits. It does not include ships and aircraft.
Paragraph 3 elaborates that income from immovable property includes income from the direct use, letting, or use in any other form of such property.
Paragraph 4 further elaborates that real property of an enterprise and real property used for performing independent personal services are also covered by this article.
ARTICLE 7 (Business Profits)	第7条 （营业利润）
This article provides rules governing the taxation by a Contracting State of income from business activity carried on in that State by a resident of the other Contracting State.	本条给出缔约国一方对于另一方居民在本国开展经营活动所取得的收入征税的规则。
Paragraph 1 provides that business profits of an enterprise of one Contracting State shall be taxable only in that State except to the extent that such profits are attributable to a permanent establishment through which the enterprise carries on business activities in the other Contracting State.
Paragraph 2 provides that the profits to be attributed to a permanent establishment are those which it might be expected to make if it were an independent enterprise engaged in similar activities under similar conditions and dealing at arm’s length with the enterprise of which it is a permanent establishment and all other related persons.
Paragraph 3 provides that deductions shall be allowed for expenses incurred for the purposes of the permanent establishment, including a reasonable allocation of executive and administrative expenses, without regard to where such expenses are incurred. However, the profits of the permanent establishment are not to be reduced by deductions for interest or royalties paid to the head office other than as reimbursements of costs incurred.
Paragraph 4 provides that, where the tax law of a Contracting State uses a deemed profit basis to determine the net income of a specific industry, the provisions of paragraph 2 do not preclude the use of that method provided that the results are consistent with the principles of this article. For example, for administrative reasons, China deems the profit of foreign shipping, airline, and oil drilling companies attributable to their Chinese operations to be a percentage of their gross receipts from China. Currently, the taxable income in such cases is deemed to be 10 percent of the gross income and that amount is subject to tax at the ordinary rates unless exempt under another provision of the Agreement. Such an approach is acceptable as long as its results are consistent with arm’s length principles.
Paragraph 5 states that the mere purchase by a permanent establishment of goods or merchandise for the enterprise shall not result in profits being attributed to the permanent establishment.
Paragraph 6 provides that, unless there is good and sufficient reason to the contrary, the same method of determining profits attributable to the permanent establishment shall be used each year. In the United States, such a change may be a change in accounting method requiring the approval of the Internal Revenue Service.
Paragraph 7 provides, that, where business profits include items of income dealt within other articles of the Agreement, the provisions of those other articles govern. For example, the taxation of dividends, interest, and royalties is controlled by Articles 9, 10, and 11, respectively; however, the terms of those articles provide that where dividends, interest, or royalties derived by a resident of a Contracting State are effectively connected with (attributable to) a permanent establishment in the other State, the provisions of this article apply and the item of income is taxed as business profits.
ARTICLE 8 (Related Enterprises)	第8条 （关联企业）
This article provides that, where related persons engage in transactions which are not at arm’s length, the Contracting States may make appropriate adjustments to their taxable income and tax liability.	本条规定，对于关联方之间的非公平交易，缔约国双方都可以适当调整他们的应税收入和税负。
Paragraph 1 states the general rule that, where an enterprise of one Contracting State and an enterprise of the other State are related through management, control, or capital and their commercial or financial relations differ from those which would prevail between independent enterprises, the profits of the enterprises may be adjusted to reflect the profits which would have accrued if the two enterprises were independent.
Paragraph 2 provides that, where one of the Contracting States increases the profits of an enterprise of that State to the amount that would have accrued to the enterprise had it been independent of an enterprise of the other Contracting State, the second State shall, to the extent it agrees that the redetermination accurately reflects arm’s length conditions, make a correlative adjustment, decreasing the amount of tax which it has already imposed on those profits. In determining such adjustments, due regard is to be paid to the other provisions of the convention. The competent authorities of the two States may consult each other in implementing this provision.
It is understood that each Contracting State may apply its internal law in determining liability for its tax. For example, although paragraphs 1 and 2 refer to allocations of “profits” and “taxes,” it is understood that such terms also include the components of the tax base and of the tax liability, such as income, deductions, credits, and allowances. The United States will apply its rules and procedures under Code section 482.
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English materials are sourced from / 英文内容取自：https://www.irs.gov/pub/irs-trty/chintech.pdf