AGREEMENT
BETWEEN
THE GOVERNMENT OF THE KINGDOM OF THAILAND
AND
THE GOVERNMENT OF NEW ZEALAND
FOR THE AVOIDANCE OF DOUBLE TAXATION
AND THE PREVENTION OF FISCAL EVASION
WITH RESPECT TO TAXES ON INCOME
The Government of New Zealand and the Government of the Kingdom of Thailand
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,
Have agreed as follows:
ARTICLE 1
PERSONAL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
ARTICLE 2
TAXES COVERED
1. The existing taxes to which this Agreement shall apply are:
(a) In New Zealand:
- the income tax;
(in this Agreement referred to as “New Zealand tax”);
(b) In Thailand:
- the income tax; and
- the petroleum income tax;
(in this Agreement referred to as “Thai tax”).
2. The Agreement shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other within a reasonable period of time of any significant changes which have been made in the taxation laws of their respective States.
3. Notwithstanding the provisions of paragraphs 1 and 2, the taxes covered by the Agreement do not include any amount which represents a penalty or interest imposed under the laws of either Contracting State.
ARTICLE 3
GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
(a) (i) the term “New Zealand” means the territory of New
Zealand but does not include Tokelau or the
Associated Self Governing States of the Cook Islands
and Niue; it also includes any area beyond the
territorial sea which by New Zealand legislation and in
accordance with international law has been, or may
hereafter be, designated as an area in which the
rights of New Zealand with respect to natural
resources may be exercised;
(ii) the term “Thailand” means the Kingdom of Thailand
and includes any area adjacent to the territorial
waters of the Kingdom of Thailand which by Thai
legislation, and in accordance with the international
law, has been or may hereafter be designated as an
area within which the rights of the Kingdom of
Thailand with respect to the sea-bed and subsoil and
their natural resources may be exercised;
(b) the term “company” means any body corporate or any entity
which is treated as a body corporate for tax purposes;
(c) the term “competent authority” means:
(i) in the case of New Zealand, the Commissioner of
Inland Revenue or an authorised representative;
(ii) in the case of Thailand, the Minister of Finance or an
authorised representative;
(d) the terms “a Contracting State” and “the other Contracting
State” mean New Zealand or Thailand as the context
requires;
(e) 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;
(f) 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 from a
place or between places in the other Contracting State;
(g) the term "national" means an individual possessing the
nationality of a Contracting State;
(h) for the purposes of Articles 10, 11 and 12 the term "paid", in
relation to any amount, includes distributed (whether in cash
or other property), credited or dealt with on behalf of a person
or at that person's direction; and the terms "pay", "payable"
and "payment" have corresponding meanings;
(i) the term “person” includes an individual, an undivided
estate, a company and any other body of persons;
2. For the purposes of Articles 10, 11 and 12, a trustee subject to tax in a Contracting State in respect of dividends, interest or royalties shall be deemed to be beneficially entitled to those dividends, interest or royalties.
3. In the application of the Agreement by a Contracting State, any term not defined in the Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which the Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.
ARTICLE 4
ResidenT
1. For the purposes of this Agreement, the term “resident of a Contracting State” means any person who:
(a) under the laws of that State, is liable to tax therein by reason
of domicile, residence, place of incorporation, place of
management or any other criterion of a similar nature; or
(b) in the case of New Zealand, is resident in New Zealand for
the purposes of New Zealand tax; or
(c) in the case of Thailand, is resident in Thailand for the
purposes of Thai tax.
2. A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3. Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then the status of the individual shall be determined as follows:
(a) the individual shall be deemed to be a resident solely of the
State in which a permanent home is available to the
individual; if a permanent home is available to the person in
both States or a permanent home is not available in either
State, the individual shall be deemed to be a resident solely
of the State with which the individual's personal and
economic relations are closer;
(b) if the individual is unable to be deemed a resident solely of
a State in accordance with the provisions of subparagraph
(a), the individual shall be deemed to be a resident solely of
the State in which the individual has an habitual abode;
(c) if the individual has an habitual abode in both States or in
neither of them, the individual shall be deemed to be a
resident solely of the State of which the individual is a citizen
or national;
(d) if the individual is a citizen or national of both States or of
neither of them, the competent authorities of the Contracting
States shall settle the question by mutual agreement.
4. Where by reason of the provisions of paragraphs 1 and 2 a person other than an individual is a resident of both Contracting States, the competent authorities of the States shall settle the question by mutual agreement and determine the mode of application of the Agreement to that person.
ARTICLE 5
PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, 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 or exploitation of natural resources;
(g) a farm or plantation; and
(h) a warehouse, in relation to a person providing storage
facilities for others.
3. A building site, or a construction, installation or assembly project or supervisory activities in connection with that building site or construction, installation or assembly project constitutes a permanent establishment if it lasts for more than 6 months.
4. An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if, for more than 6 months, it carries on activities in that State which consist of, or which are connected with, the exploration or exploitation of natural resources situated in that State.
5. An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if it furnishes 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 or a connected project within the other Contracting State for a period or periods aggregating more than 6 months within any twelve-month period.
6. For the purposes of determining the duration of activities under paragraphs 3, 4 and 5, the period during which activities are carried on in a Contracting State by an enterprise associated with another enterprise shall be aggregated with the period during which activities are carried on by the enterprise with which it is associated if the first-mentioned activities are connected with the activities carried on in that State by the last-mentioned enterprise, provided that any period during which two or more associated enterprises are carrying on concurrent activities is counted only once. An enterprise shall be deemed to be associated with another enterprise if one is controlled directly or indirectly by the other, or if both are controlled directly or indirectly by a third person or persons.
7. An enterprise shall not be deemed to have a “permanent establishment” merely by reason of:
(a) the use of facilities solely for the purpose of storage or
display of goods or merchandise belonging to the
enterprise; or
(b) the maintenance of a stock of goods or merchandise
belonging to the enterprise solely for the purpose of storage
or display ; or
(c) the maintenance of a stock of goods or merchandise
belonging to the enterprise solely for the purpose of
processing by another enterprise; or
(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; or
(e) the maintenance of a fixed place of business solely for the
purpose of carrying on, for the enterprise, any other activity of
a preparatory or auxiliary character, such as advertising or
scientific research.
8. Notwithstanding the provisions of paragraphs 1 and 2, 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 paragraph 9 applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if the person:
(a) has and habitually exercises in the first-mentioned State an
authority to conclude contracts on behalf of that
enterprise,unless the activities are limited to the purchase of
goods or merchandise for the enterprise; or
(b) habitually maintains in the first-mentioned State a stock of
goods or merchandise belonging to the enterprise from
which the person regularly fills orders on behalf of the
enterprise; or
(c) 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; or
(d) in so acting, manufactures or processes in that State for the
enterprise goods or merchandise belonging to that
enterprise.
9. 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 person who is a broker, general commission agent or any other agent of an independent status, and is acting in the ordinary course of the person’s business as such a broker or agent. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, or on behalf of that enterprise and other enterprises which are controlled by it or have a controlling interest in it, the agent will not be considered an agent of independent status within the meaning of this paragraph.
10. 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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