AUSTRALIAN TAX TREATIES

Swiss Convention  

CONVENTION BETWEEN AUSTRALIA AND THE SWISS CONFEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME, WITH PROTOCOL  

CHAPTER II - DEFINITIONS  

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; and


g) an agricultural, pastoral or forestry property.

3  
A building site or construction or installation project constitutes a permanent establishment only if it lasts more than twelve months.

4  
Notwithstanding the provisions of paragraphs 1 , 2 and 3 , where an enterprise of a Contracting State:


a) carries on supervisory or consultancy activities in the other State for a period exceeding 12 months in connection with a building site or construction or installation project which is being undertaken in that other State;


b) carries on activities (including the operation of substantial equipment) in the other State in the exploration for or exploitation of natural resources situated in that other State for an aggregate period of at least 6 months in any 24 month period; or


c) operates substantial equipment in the other State (including as provided in subparagraph b)) for a period exceeding 12 months,

such activities shall be deemed to be carried on through a permanent establishment of the enterprise situated in that other State, unless the activities are limited to those mentioned in paragraph 5 which, if exercised through a fixed place of business, would not make this place of business a permanent establishment under the provisions of that paragraph.

5  
An enterprise shall not be deemed to have permanent establishment merely by reason of:


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 for collecting information, for the enterprise;


e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.

6  
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 7 applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:


a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless that person ' s activities are limited to the purchase of goods or merchandise for the enterprise; or


b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.

7  
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that 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.

9  
The principles set forth in paragraphs 1 to 8 inclusive shall be applied in determining for the purposes of this Agreement whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.




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