CONVENTION
BETWEEN
THE GOVERNMENT OF THE KINGDOM OF THAILAND
AND
THE GOVERNMENT OF THE KINGDOM OF SPAIN
FORTHE AVOIDANCE OF DOUBLE TAXATION
AND THE PREVENTION OF FISCAL EVASION WITH
RESPECT TO TAXES ON INCOME
The Government of the Kingdom of Thailand and the Government of the Kingdom of Spain,
Desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,
Have agreed as follows:
ARTICLE 1
PERSONAL SCOPE
This Convention shall apply to persons who are residents of one or both of the Contracting States.
ARTICLE 2
TAXES COVERED
1. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
3. The existing taxes to which the Convention shall apply are in particular:
(a) In the case of Thailand:
- the income tax; and
- the petroleum income tax;
(hereinafter referred to as "Thai tax");
(b) In the case of Spain:
- the income tax on individuals; and
- the corporation tax;
(hereinafter referred to as" Spanish tax").
4. The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of significant changes which have been made, in their respective taxation laws.
ARTICLE 3
GENERAL DEFINITIONS
1. For the purposes of this Convention, unless the context otherwise requires:
(a) the term" Spain" means the Kingdom of Spain and, when
used geographically, means the territory of the Spanish
State including any areas outside the territorial sea upon
which, in accordance with international law and domestic
legislation, the Spanish State may exercise jurisdiction
or sovereign rights with respect to the seabed, its
subsoil and superjacent waters, and their natural
resources;
(b) the term "Thailand" means the Kingdom of Thailand and
includes any area adjacent to the territorial sea of the
Kingdom of Thailand including the seabed and subsoil
over which the Kingdom of Thailand may exercise
jurisdiction by virtue of its legislation and in accordance
with international law;
(c) the terms " a Contracting State" and "the other
Contracting State" mean Spain or Thailand as the context
requires;
(d) the term "person" includes an individual, a company and
any other body of persons;
(e) the term "company" means any body corporate or any
entity which is treated as a body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and
"enterprise of the other Contracting State" mean
respectively an enterprise carried on by a resident of a
Contracting State and an enterprise carried on by a resident
of the other Contracting State;
(g) the term "tax" means Thai tax or Spanish tax as the context
requires;
(h) the term "national" means:
(i) any individual possessing the nationality of a
Contracting State;
(ii) any legal person, partnership, association and any
other entity deriving its status as such from the laws
in force in a Contracting State;
(i) the term "international traffic" means, any transport by a ship
or aircraft operated by an enterprise of a Contracting
State, except when the ship or aircraft is operated
solely between places in the other Contracting State; and
(j) the term " competent authority" means in the case of
Spain, the Minister of Economy and Finance or his
authorized representative, and, in the case of Thailand,
the Minister of Finance or his authorized representative.
2. As regards the application of the Convention by a Contracting State any term not defined therein shall, unless the context otherwise requires have the meaning which it has under the law of that State concerning the taxes to which the Convention applies.
ARTICLE 4
RESIDENT
1. For the purposes of this Convention, the term "resident of a Contracting State" means any person who, under the law of that State, is liable to tax therein by reason of his domicile, residence, place of incorporation, place of management or any other criterion of a similar nature. But this term does not include any person who is liable to tax in that State in respect only of income from sources in that State.
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
(a) he shall be deemed to be a resident of the State in which
he has a permanent home available to him; if he has
apermanent home available to him in both States, he shall
be deemed to be a resident of the State with which his
personal and economic relations are closer (centre of vital
interests);
(b) if the State in which he has his centre of vital interests
cannot be determined, or if he has not a permanent home
available to him in either State, he shall be deemed to be a
resident of the State in which he has an habitual abode;
(c) if he has an habitual abode in both States or in neither of
them, he shall be deemed to be a resident of the State of
which he is a national;
(d) if he is a national of both States or of neither of them, the
competent authorities of the Contracting States shall settle
the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then the competent authorities of the Contracting States shall settle the question by mutual agreement.
ARTICLE 5
PERMANENT ESTABLISHMENT
1. For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of
extraction of natural resources;
(g) a farm or plantation;
3. The term "permanent establishment" shall also include:
(a) a building site, a construction, installation or assembly
project, or supervisory activities in connection therewith,
where such site, project or activities continue for a period
of more than 6 months;
(b) the furnishing of services including consultancy services by
a resident of one of the Contracting States through
employees or other personnel, where activities of that
nature continue for the same of a connected project
within the other Contracting State for a period or periods
aggregating more than 6 months within any twelve month
period.
4. Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
(a) the use of facilities solely for the purpose of storage, display
or delivery of goods or merchandise belonging to the
enterprise;
(b) the maintenance of a stock of goods or merchandise
belonging to the enterprise solely for the purpose of
storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise
belonging to the enterprise solely for the purpose of
processing by another enterprise;
(d) the maintenance of a fixed place of business solely
for the purpose of purchasing goods or merchandise,
or of collecting information, for the enterprise;
(e) 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.
(f) the maintenance of a fixed place of business solely for any
combination of activities mentioned in subparagraphs (a)
to (e) provided that the overall activity of the fixed place of
business resulting from this combination is of a
preparatory or auxiliary character.
5. Notwithstanding the provisions of paragraphs 1, 2 and 4, where a person - other than an agent of an independent status to whom paragraph 7 applies - is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State, if such a person:
(a) has and habitually exercises in the first-mentioned State
an authority to conclude contracts on behalf of the
enterprise, unless his activities are limited to the
purchase of goods or merchandise for the enterprise;
(b) has no such authority, but habitually maintains in the first-
State a stock of goods or merchandise belonging to the
enterprise from which he regularly fills orders or
makes deliveries on behalf of the enterprise; or
(c) has no such authority, but habitually secures orders in
the first-mentioned State wholly or almost wholly for the
enterprise or for the enterprise and other enterprises
which are controlled by it or have a controlling interest in it.
6. Notwithstanding the preceding provisions of this Article an insurance enterprise of a Contracting State shall, except with regard to reinsurance, be deemed to have a permanent establishment in the other State if it collects premiums in the territory of that other State or insures risks situated therein through an employee or through a representative who is not an agent of an independent status within the meaning of paragraph 7 of this Article.
7. 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, provided that such persons are acting in the ordinary course of their business.
8. 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.
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