AGREEMENT
BETWEEN THE SWISS CONFEDERATION
AND
THE REPUBLIC OF TURKEY
FOR THE AVOIDANCE OF DOUBLE TAXATION
WITH RESPECT TO TAXES ON INCOME
THE SWISS FEDERAL COUNCIL
AND
THE GOVERNMENT OF THE REPUBLIC OF TURKEY
Desiring to conclude an Agreement for the avoidance of double
taxation with respect to taxes on income
HAVE AGREED as follows:
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Article 1
PERSONS COVERED
This Agreement shall apply to persons who are residents of one or both of the
Contracting States.
Article 2
TAXES COVERED
1. This Agreement 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 ordinary and extraordinary 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 Agreement shall apply are, in particular:
a) in Switzerland:
the federal, cantonal and communal taxes on income (total income, earned
income, income from capital, industrial and commercial profits, capital gains
and other items of income)
(hereinafter referred to as “Swiss tax”);
b) in Turkey:
i) the income tax;
ii) the corporation tax;
(hereinafter referred to as “Turkish tax”).
4. 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
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place of, the existing taxes. The competent authorities of the Contracting States shall
notify each other of any substantial changes which have been made in their
respective taxation laws.
5. The Agreement shall not apply to taxes levied by either Contracting State on
wagering, gambling or lottery winnings.
Article 3
GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
a) i) the term “Switzerland” means the Swiss Confederation;
ii) the term “Turkey” means the territory of the Republic of Turkey, the
territorial sea, as well as the maritime areas over which it has exclusive
jurisdiction or sovereign rights for the purposes of exploitation and
conservation of natural resources in accordance with international law;
b) the terms “a Contracting State” and “the other Contracting State” mean
Switzerland or Turkey as the context requires;
c) the term “tax” means any tax covered by Article 2 of this Agreement;
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 term “head office” (registered office) means the head office registered
under the Swiss Code of Obligations or the legal head office registered under
the Turkish Code of Commerce;
g) the term “national” means,
i) any individual possessing the nationality of a Contracting State;
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ii) any legal person, partnership or association deriving its status as such from
the laws in force in a Contracting State;
h) 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;
i) the term “competent authority” means:
i) in Switzerland, the Director of the Federal Tax Administration or his
authorised representative;
ii) in Turkey, the Minister of Finance or his authorised representative;
j) the term “international traffic” means any transport by a ship, an aircraft or a
road vehicle operated by an enterprise of a Contracting State, except when
the ship or the aircraft or road vehicle is operated solely between places
situated in the other Contracting State.
2. As regards the application of the Agreement at any time by a Contracting State,
any term not defined therein shall, unless the context otherwise requires, have the
meaning that it has at that time under the law of that State for the purposes of 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, under the laws of that State, is liable to tax therein by
reason of his domicile, residence, head office (registered office), place of
management or any other criterion of a similar nature, and also includes that State
and any political subdivision or local authority thereof.
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:
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a) he shall be deemed to be a resident only of the State in which he has a
permanent home available to him; if he has a permanent home available to
him in both States, he shall be deemed to be a resident only 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 only 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 only 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 it shall be deemed to be a
resident only of the State in which its place of effective management is situated.
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;
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f) a mine, an oil or gas well, a quarry or any other place of extraction of natural
resources.
3. The term “permanent establishment” also encompasses:
a) a building site, a construction, assembly or installation project or supervisory
activities in connection therewith but only if such site project or activities last
more than six months;
b) the furnishing of services, including consultancy services, by an enterprise
through employees or other personnel engaged by the enterprise for such
purpose, but only if activities of that nature continue (for the same or a
connected project) within a Contracting State for a period or periods
aggregating more than six 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 sub-paragraphs 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.
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5. Notwithstanding the provisions of paragraphs 1 and 2, where a person – other
than an agent of an independent status to whom paragraph 6 applies – is acting on
behalf of an enterprise and has, and habitually exercises, in a Contracting State an
authority to conclude contracts in the name of the enterprise, that enterprise shall be
deemed to have a permanent establishment in that State in respect of any activities
which that person undertakes for the enterprise, unless the activities of such person
are limited to those mentioned in paragraph 4 which, if exercised through a fixed
place of business, would not make this fixed place of business a permanent
establishment under the provisions of that paragraph.
6. 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.
7. 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.
Article 6
INCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property
(including income from agriculture and forestry) situated in the other Contracting
State may be taxed in that other State.
2. The term “immovable property” shall have the meaning which it has under the
law of the Contracting State in which the property in question is situated. The term
shall in any case include property accessory to immovable property, livestock and
equipment used in agriculture and forestry, fishing places of every kind, rights to
which the provisions of general law respecting landed property apply, usufruct of
immovable property and rights to variable or fixed payments as consideration for the
working of, or the right to work, mineral deposits, sources and other natural
resources; ships, aircraft and road vehicles shall not be regarded as immovable
property.
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3. The provisions of paragraph 1 shall apply to income derived from the direct use,
letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from
immovable property of an enterprise and to income from immovable property used
for the performance of independent personal services.
Article 7
BUSINESS PROFITS
1. The profits of an enterprise of a Contracting State shall be taxable only in that
State unless the enterprise carries on business in the other Contracting State
through a permanent establishment situated therein. If the enterprise carries on
business as aforesaid, the profits of the enterprise may be taxed in the other State
but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting
State carries on business in the other Contracting State through a permanent
establishment situated therein, there shall in each Contracting State be attributed to
that permanent establishment the profits which it might be expected to make if it
were a distinct and separate enterprise engaged in the same or similar activities
under the same or similar conditions and dealing wholly independently with the
enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed
as deductions expenses which are incurred for the purposes of the permanent
establishment, including executive and general administrative expenses so incurred,
whether in the State in which the permanent establishment is situated or elsewhere.
4. No profits shall be attributed to a permanent establishment by reason of the
mere purchase by that permanent establishment of goods or merchandise for the
enterprise.
5. Where profits include items of income which are dealt with separately in other
Articles of this Agreement, then the provisions of those Articles shall not be affected
by the provisions of this Article.
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Article 8
SHIPPING, AIR AND ROAD TRANSPORT
1. Profits of an enterprise of a Contracting State derived from the operation of
ships, aircraft or road vehicles in international traffic shall be taxable only in that
State.
2. The provisions of paragraph 1 shall also apply to profits from the participation in
a pool, a joint business or an international operating agency.
Article 9
ASSOCIATED ENTERPRISES
1. Where
a) an enterprise of a Contracting State participates directly or indirectly in the
management, control or capital of an enterprise of the other Contracting State,
or
b) the same persons participate directly or indirectly in the management, control
or capital of an enterprise of a Contracting State and an enterprise of the other
Contracting State,
and in either case conditions are made or imposed between the two enterprises in
their commercial or financial relations which differ from those which would be made
between independent enterprises, then any profits which would, but for those
conditions, have accrued to one of the enterprises, but, by reason of those
conditions, have not so accrued, may be included in the profits of that enterprise and
taxed accordingly.
2. Where a Contracting State includes in the profits of an enterprise of that State –
and taxes accordingly – profits on which an enterprise of the other Contracting State
has been charged to tax in that other State and the profits so included are profits
which would have accrued to the enterprise of the first-mentioned State if the
conditions made between the two enterprises had been those which would have
been made between independent enterprises, then the competent authorities of the
Contracting States may consult together with a view to reach an agreement on the
adjustments of profits. Where the mutual agreement is reached, the Contracting
State concerned shall make the appropriate adjustment.
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3. A Contracting State shall not change the profits of an enterprise in the
circumstances referred to in paragraph 1 after the expiry of the time limits provided in
its national laws and, in any case, after five years from the end of the year in which
the profits which would be subject to such change would have accrued to an
enterprise of that State.
Article 10
DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a
resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of
which the company paying the dividends is a resident and according to the laws of
that State, but if the beneficial owner of the dividends is a resident of the other
Contracting State, the tax so charged shall not exceed:
a) in the case of Switzerland:
(i) 5 per cent of the gross amount of the dividends if the beneficial owner is
a company (other than a partnership) which holds directly at least 20 per
cent of the capital of the company paying the dividends;
(ii) 15 per cent of the gross amount of the dividends in all other cases;
b) in the case of Turkey:
(i) 5 per cent of the gross amount of the dividends if the beneficial owner is
a company (other than a partnership) which holds directly at least 20 per
cent of the capital of the company paying the dividends provided that a relief
from Swiss tax is granted for such dividends by way of an abatement of the
profits tax in proportion corresponding to the ratio between the earnings
from participations and the total profits or by way of an equivalent relief;
(ii) 15 per cent of the gross amount of the dividends in all other cases.
This paragraph shall not affect the taxation of the company in respect of the
profits out of which the dividends are paid.
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The competent authorities of the Contracting States shall by mutual agreement settle
the mode of application of these limitations.
3. The term “dividends” as used in this Article means income from shares,
“jouissance” shares or “jouissance” rights, founders’ shares or other rights, not
being debt-claims, participating in profits, as well as income from other corporate
rights which is subjected to the same taxation treatment as income from shares
by the laws of the State of which the company making the distribution is a
resident.
4. Profits of a company of a Contracting State carrying on business in the
other Contracting State through a permanent establishment situated therein
may, after having been taxed under Article 7, be taxed on the remaining amount
in the Contracting State in which the permanent establishment is situated, but the
tax so charged shall not exceed ;
a) in the case of Switzerland, 5 per cent of the remaining amount,
b) in the case of Turkey,
(i) 5 per cent of the remaining amount if the profits of the company are
exempted from tax in Switzerland;
(ii) 15 per cent of the remaining amount in all other cases.
5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner
of the dividends, being a resident of a Contracting State, carries on business in
the other Contracting State of which the company paying the dividends is a
resident through a permanent establishment situated therein, or performs in
that other State independent personal services from a fixed base situated therein,
and the holding in respect of which the dividends are paid is effectively connected
with such permanent establishment or fixed base. In such case the provisions of
Article 7 or Article 14, as the case may be, shall apply.
6. Subject to the provisions of paragraph 4 of this Article, where a company
which is a resident of a Contracting State derives profits or income from the other
Contracting State, that other State may not impose any tax on the dividends
paid by the company, except insofar as such dividends are paid to a resident of
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that other State or insofar as the holding in respect of which the dividends are
paid is effectively connected with a permanent establishment or a fixed
base situated in that other State, nor subject the company’s undistributed
profits to a tax on the company’s undistributed profits, even if the dividends paid or
the undistributed profits consist wholly or partly of profits or income arising in such
other State.
Article 11
INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other
Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it
arises and according to the laws of that State, but if the beneficial owner of the
interest is a resident of the other Contracting State, the tax so charged shall not
exceed:
a) 5 per cent of the gross amount of the interest paid in respect of a loan or credit
made, guaranteed or insured for the purposes of promoting export by an
Eximbank or similar institution, the objective of which is to promote the export;
b) 10 per cent of the gross amount of the interest if the interest is derived by a
bank;
c) 10 per cent of the gross amount of the interest in all other cases.
The competent authorities of the Contracting States shall by mutual agreement settle
the mode of application of these limitations.
3. Notwithstanding the provisions of paragraph 2, interest shall be exempted from
tax in the Contracting State in which it arises if it is paid to the other Contracting
State or the Central Bank of that other State.
4. 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
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all other income assimilated to income from money lent by the taxation law of the
State in which the income arises.
5. The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of
the interest, being a resident of one of the Contracting States, carries on business in
the other Contracting State in which the interest arises, through a permanent
establishment situated therein, or performs in that other State independent personal
services from a fixed base situated therein, and the debt-claim in respect of which
the interest is paid is effectively connected with such permanent establishment or
fixed base. In such case the provisions of Article 7 or Article 14, as the case may be,
shall apply.
6. Interest shall be deemed to arise in a Contracting State when the payer is a
resident of that State. Where, however, the person paying the interest, whether he is
a resident of a Contracting State or not, has in a Contracting State a permanent
establishment or a fixed base in connection with which the indebtedness on which
the interest is paid was incurred, and such interest is borne by such permanent
establishment or fixed base, then such interest shall be deemed to arise in the State
in which the permanent establishment or fixed base is situated.
7. Where, by reason of a special relationship between the payer and the beneficial
owner or between both of them and some other person, the amount of the interest,
having regard to the debt-claim for which it is paid, exceeds the amount which would
have been agreed upon by the payer and the beneficial owner in the absence of
such relationship, the provisions of this Article shall apply only to the last-mentioned
amount. In such case, the excess part of the payments shall remain taxable
according to the laws of each Contracting State, due regard being had to the other
provisions of this Agreement.
Article 12
ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other
Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they
arise and according to the laws of that State, but if the beneficial owner of the
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royalties is a resident of the other Contracting State, the tax so charged shall not
exceed 10 per cent of the gross amount of the royalties.
The competent authorities of the Contracting States shall by mutual agreement settle
the mode of application of these limitations.
3. The term “royalties” as used in this Article means payments of any kind received
as a consideration for the use of, or the right to use, any copyright of literary, artistic
or scientific work including cinematograph films and recordings for radio or television,
any patent, trade mark, design or model, plan, secret formula or process, or for
information concerning industrial, commercial or scientific experience, or for the use
of, or the right to use, industrial, commercial, or scientific equipment.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of
the royalties, being a resident of one of the Contracting States, carries on business in
the other Contracting State in which the royalties arise, through a permanent
establishment situated therein, or performs in that other State independent personal
services from a fixed base situated therein, and the right or property in respect of
which the royalties are paid is effectively connected with such permanent
establishment or fixed base. In such case the provisions of Article 7 or Article 14, as
the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is a
resident of that State. Where, however, the person paying the royalties, whether he
is a resident of a Contracting State or not, has in a Contracting State a permanent
establishment or a fixed base in connection with which the right or property giving
rise to the royalties is effectively connected, and such royalties are borne by such
permanent establishment or fixed base then such royalties shall be deemed to arise
in the Contracting State in which the permanent establishment or fixed base is
situated.
6. Where, by reason of a special relationship between the payer and the beneficial
owner or between both of them and some other person, the amount of the royalties,
having regard to the use, right or information for which they are paid, exceeds the
amount which would have been agreed upon by the payer and the beneficial owner
in the absence of such relationship, the provisions of this Article shall apply only to
the last-mentioned amount. In such case, the excess part of the payments shall
remain taxable according to the laws of each Contracting State, due regard being
had to the other provisions of this Agreement.
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Article 13
CAPITAL GAINS
1. Gains derived by a resident of a Contracting State from the alienation of
immovable property referred to in Article 6 and situated in the other Contracting State
may be taxed in that other State.
2. Gains from the alienation of movable property forming part of the business
property of a permanent establishment which an enterprise of a Contracting State
has in the other Contracting State, or of movable property pertaining to a fixed base
available to a resident of a Contracting State in the other Contracting State for the
purpose of performing independent personal services, including such gains from the
alienation of such a permanent establishment (alone or with the whole enterprise) or
of such fixed base, may be taxed in that other State.
3. Gains from the alienation of ships, aircraft or road vehicles operated in
international traffic, or movable property pertaining to the operation of such ships,
aircraft or road vehicles, shall be taxable only in the Contracting State in which the
enterprise is resident.
4. Gains from the alienation of any property other than that referred to in
paragraphs 1, 2 and 3 shall be taxable only in the Contracting State of which the
alienator is a resident. However, the capital gains mentioned in the foregoing
sentence and derived from the other Contracting State, shall be taxable in the other
Contracting State if the time period between acquisition and alienation does not
exceed one year.
Article 14
INDEPENDENT PERSONAL SERVICES
1. Income derived by an individual who is a resident of one of the Contracting
States in respect of professional services or other activities of an independent
character shall be taxable only in that State. However such income may also be
taxed in the other Contracting State if such services or activities are performed in
that other State and if:
a) he has a fixed base regularly available to him in that other State for the
purpose of performing those services or activities; or
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b) he is present in that other State for the purpose of performing those services
or activities for a period or periods amounting in the aggregate to 183 days or
more in any continuous period of 12 months.
In such circumstances, only so much of the income as is attributable to that fixed
base or is derived from the services or activities performed during his presence in
that other State, as the case may be, may be taxed in that other State.
2. The term “professional services” includes especially independent scientific,
literary, artistic, educational or teaching activities as well as the independent
activities of physicians, lawyers, engineers, architects, dentists and accountants, and
other activities requiring specific professional skill.
Article 15
DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other
similar remuneration derived by a resident of a Contracting State in respect of an
employment shall be taxable only in that State unless the employment is exercised in
the other Contracting State. If the employment is so exercised, such remuneration as
is derived therefrom may be taxed in that other 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:
a) 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
b) the remuneration is paid by, or on behalf of, an employer who is not a resident
of the other State, and
c) the remuneration is not borne by a permanent establishment or a fixed base
which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in
respect of an employment exercised aboard a ship, an aircraft or road vehicle
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operated in international traffic, may be taxed in the Contracting State in which the
enterprise is resident.
Article 16
DIRECTORS’ FEES
Directors’ fees and other similar payments derived by a resident of a Contracting
State in his capacity as a member of the board of directors of a company which is a
resident of the other Contracting State may be taxed in that other State.
Article 17
ARTISTES AND SPORTSMEN
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a
resident of a Contracting State as an entertainer, such as a theatre, motion picture,
radio or television artiste, or a musician, or as a sportsman, from his personal
activities as such exercised in the other Contracting State, may be taxed in that other
State.
2. Where income in respect of personal activities exercised by an entertainer or a
sportsman in his capacity as such accrues not to the entertainer or sportsman
himself but to another person, that income may, notwithstanding the provisions of
Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the
entertainer or sportsman are exercised.
3. The provisions of paragraphs 1 and 2 shall not apply to remuneration or profits,
salaries, wages and similar income derived from activities performed in a Contracting
State by entertainers or sportsmen if their visit to that State is substantially supported
from the public funds of the other Contracting State, a political subdivision or a local
authority thereof.
Article 18
PENSIONS
1. Subject to the provisions of paragraph 1 of Article 19, pensions and other similar
remuneration paid to a resident of a Contracting State in consideration of past
employment and annuities as defined in paragraph 2 of this Article shall be taxable
only in that State.
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2. The term “annuity” means a stated sum payable periodically at stated times
during life or during a specified or ascertainable period of time under an obligation to
make the payments in return for adequate and full consideration in money or
money’s worth.
Article 19
GOVERNMENT SERVICES
1. Remuneration, including pensions, paid by, or out of funds created by, a
Contracting State or a political subdivision or a local authority thereof to an individual
in respect of services rendered to that State or subdivision or local authority thereof
in the discharge of functions of a governmental nature shall be taxable only in that
State.
2. The provisions of Articles 15, 16, 17 and 18 shall apply to remuneration or
pensions in respect of services rendered in connection with any trade or business
carried on by one of the Contracting States or a political subdivision or a local
authority thereof.
Article 20
STUDENTS
1. Payments which a student or business apprentice who is or was immediately
before visiting one of the Contracting States a resident of the other Contracting State
and who is present in the first-mentioned State solely for the purpose of his
education or training receives for the purpose of his maintenance, education or
training shall not be taxed in that State, provided that such payments arise from
sources outside that State.
2. In respect of grants, scholarships and remuneration from employment not
covered by paragraph 1, a student or business apprentice described in paragraph 1
shall, in addition, be entitled during such education or training to the same
exemptions, reliefs or reductions in respect of taxes available to residents of the
State which he is visiting.
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Article 21
OTHER INCOME
1. Items of income of a resident of a Contracting State, wherever arising, not dealt
with in the foregoing Articles of this Agreement shall be taxable only in that State.
2. The provisions of paragraph 1 shall not apply to income, other than income from
immovable property as defined in paragraph 2 of Article 6, if the recipient of such
income, being a resident of a Contracting State, carries on business in the other
Contracting State through a permanent establishment situated therein, or performs in
that other State independent personal services from a fixed base situated therein,
and the right or property in respect of which the income is paid is effectively
connected with such permanent establishment or fixed base. In such case the
provisions of Article 7 or Article 14, as the case may be, shall apply.
Article 22
ELIMINATION OF DOUBLE TAXATION
1. Double taxation for the residents of Switzerland shall be eliminated as follows:
a) Where a resident of Switzerland derives income which, in accordance with the
provisions of this Agreement, may be taxed in Turkey, Switzerland shall,
subject to the provisions of sub-paragraph b), exempt such income from tax but
may, in calculating tax on the remaining income, of that resident, apply the rate
of tax which would have been applicable if the exempted income had not been
so exempted; provided however, that such exemption shall apply to gains
referred to in the second sentence of paragraph 4 of Article 13 only if actual
taxation of such gains in Turkey is demonstrated.
b) Where a resident of Switzerland derives dividends, interest or royalties which,
in accordance with the provisions of Articles 10, 11 and 12, may be taxed in
Turkey, Switzerland shall allow, upon request, a relief to such resident. The
relief may consist of
i) a deduction from the Swiss tax on the income of that resident of an amount
equal to the tax levied in Turkey in accordance with the provisions of
Articles 10, 11 and 12, such deduction shall not, however, exceed that part
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of Swiss tax, as computed before the deduction is given, which is
attributable to such items of income which may be taxed in Turkey; or
ii) a lump sum deduction of the Swiss tax determined by standardised formula
which have regard to the general principles of the relief referred to in subparagraph
(i) above;
iii) a partial exemption of such dividends, interest or royalties from Swiss tax,
in any case consisting at least of the deduction of the tax levied in Turkey
from the gross amount of the dividends, interest or royalties.
Switzerland shall determine the applicable relief and regulate the procedure in
accordance with the Swiss provisions relating to the carrying out of international
conventions of the Swiss Confederation for the avoidance of double taxation.
c) Where a resident of Switzerland derives interest or royalties which, in
accordance with the provisions of Turkish Laws and Decrees, are exempt from
Turkish tax or taxed at a rate lower than the rate provided for in paragraph 2 of
Article 11, or paragraph 2 of Article 12, respectively, then the amount of the tax
levied in Turkey on such interest and royalties shall be deemed to have been
paid at the rate of;
i) 5% in case of interest payments mentioned in Article 11;
ii) 5% in case of leasing payments and 10% for all other royalties mentioned in
Article 12.
The provisions of this sub-paragraph shall apply only for the first 5 years for which
this Agreement is effective.
2. Double taxation for the residents of Turkey shall be eliminated as follows:
a) Subject to the provisions of the laws of Turkey regarding the allowance as a
credit against Turkish tax of tax payable in a territory outside Turkey (as they
may be amended from time to time without changing the general principles
hereof), Swiss tax payable under the laws of Switzerland and in accordance
with this Agreement in respect of income (including profits and chargeable
gains) derived by a resident of Turkey from sources within Switzerland shall be
allowed as a deduction from the Turkish tax on such income. Such deduction,
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however, shall not exceed the amount of Turkish tax, as computed before the
deduction is made, attributable to such income;
b) Where in accordance with any provision of the Agreement income derived by a
resident of Turkey is exempt from tax in Turkey, Turkey may nevertheless, in
calculating the amount of tax on the remaining income of such resident, take
into account the exempted income.
Article 23
NON-DISCRIMINATION
1. 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, in particular with respect to residence, are or
may be subjected. This provision shall, notwithstanding the provisions of Article 1,
also apply to persons who are not residents of one or both of the Contracting States.
2. Subject to the provisions of paragraph 4 of Article 10, the taxation on 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.
3. 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 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 the firstmentioned
State are or may be subjected.
4. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article
11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements
paid by an enterprise of a Contracting State to a resident of the other Contracting
State shall, for the purpose of determining the taxable profits of such enterprise, be
deductible under the same conditions as if they had been paid to a resident of the
first-mentioned State.
5. These provisions shall not be construed as obliging a Contracting State to grant
to residents of the other Contracting State any personal allowances, reliefs and
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reductions for taxation purposes on account of civil status or family responsibilities
which it grants to its own residents.
6. In this Article, the term “taxation” means taxes which are the subject of this
Agreement.
Article 24
MUTUAL AGREEMENT PROCEDURE
1. Where a person considers that the actions of one or both of the Contracting
States result or will result for him in taxation not in accordance with the provisions of
this Agreement, he may, irrespective of the remedies provided by the domestic law
of those States, present his case to the competent authority of the Contracting State
of which he is a resident or, if his case comes under paragraph 1 of Article 23, to that
of the Contracting State of which he is a national.
2. The competent authority shall endeavour, if the objection appears to it to be
justified and if it is not itself able to arrive at a satisfactory solution, to resolve the
case by mutual agreement with the competent authority of the other Contracting
State, with a view to the avoidance of taxation which is not in accordance with the
Agreement.
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 the Agreement. They may also consult together for the elimination of
double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each
other directly, including through a joint commission consisting of themselves or their
representatives for the purpose of reaching an agreement in the sense of the
preceding paragraphs.When it seems advisable in order to reach agreement to have
an oral exchange of opinions, such exchange may take place through a Commission
consisting of representatives of the competent authorities of the Contracting States.
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Article 25
EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such
information as is foreseeably relevant for carrying out the provisions of this
Agreement or to the administration or enforcement of the domestic laws concerning
taxes covered by this Agreement insofar as the taxation thereunder is not contrary to
the Agreement. The exchange of information is not restricted by Article 1.
2. Any information received under paragraph 1 by a Contracting State shall be
treated as secret in the same manner as information obtained under the domestic
laws of that State and shall be disclosed only to persons or authorities (including
courts and administrative bodies) concerned with the assessment or collection of, the
enforcement or prosecution in respect of, or the determination of appeals in relation
to the taxes referred to in paragraph 1. Such persons or authorities shall use the
information only for such purposes. They may disclose the information in public court
proceedings or in judicial decisions. Notwithstanding the foregoing, information
received by a Contracting State may be used for other purposes when such
information may be used for such other purposes under the laws of both States and
the competent authority of the supplying State authorises such use.
3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to
impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the laws and
administrative practice of that or of the other Contracting State;
b) to supply information which is not obtainable under the laws or in the normal
course of the administration of that or of the other Contracting State;
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c) to supply information which would disclose any trade, business, industrial,
commercial or professional secret or trade process, or information the
disclosure of which would be contrary to public policy (ordre public).
4. If information is requested by a Contracting State in accordance with this Article,
the other Contracting State shall use its information gathering measures to obtain the
requested information, even though that other State may not need such information
for its own tax purposes. The obligation contained in the preceding sentence is
subject to the limitations of paragraph 3 but in no case shall such limitations be
construed to permit a Contracting State to decline to supply information solely
because it has no domestic interest in such information.
5. In no case shall the provisions of paragraph 3 be construed to permit a
Contracting State to decline to supply information solely because the information is
held by a bank, other financial institution, nominee or person acting in an agency or a
fiduciary capacity or because it relates to ownership interests in a person. In order to
obtain such information, the tax authorities of the requested Contracting State shall,
therefore, have the power to enforce the disclosure of information covered by this
paragraph, notwithstanding paragraph 3 or any contrary provisions in its domestic
laws.
Article 26
MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS
1. Nothing in this Agreement shall affect the fiscal privileges of members of
diplomatic missions or consular posts under the general rules of international law or
under the provisions of special agreements.
2. An individual who is a member of a diplomatic mission, consular post or
permanent mission of a Contracting State which is situated in the other Contracting
State or in a third State shall be deemed for the purposes of the Agreement to be a
resident of the sending State if he is liable in the sending State to the same
obligations in relation to tax on his total income as are residents of that State.
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3. The Agreement shall not apply to international organizations, to organs or
officials thereof and to persons who are members of a diplomatic mission, consular
post or permanent mission of a third State, being present in a Contracting State and
not treated in either Contracting State as residents in respect of taxes on income.
Article 27
ENTRY INTO FORCE
1. This Agreement shall be ratified and the instruments of ratification shall be
exchanged as soon as possible.
2. The Agreement shall enter into force upon the exchange of instruments of
ratification and its provisions shall have effect for taxes with respect to every taxable
year beginning on or after the first day of January of the year following that of entry
into force of the Agreement.
3. The agreement between the Swiss Federal Council and the Government of the
Republic of Turkey for the avoidance of double taxation on income derived from air
transport, concluded by exchange of letters dated 29 June 1990, shall be suspended
and shall not have effect as long as the provisions of this Agreement shall be
applicable.
Article 28
TERMINATION
This Agreement shall remain in force until terminated by a Contracting State. Either
Contracting State may terminate the Agreement, through diplomatic channels, by
giving notice of termination at least six months before the end of any calendar year.
In such event, the Agreement shall cease to have effect for taxes with respect to
every taxable year beginning on or after the first day of January of the year following
that in which the notice of termination is given.
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IN WITNESS WHEREOF the undersigned duly authorised thereto, have signed this
Agreement.
Done in duplicate at Berne, this 18th day of June 2010, in the French, Turkish, and
English languages, all three texts being equally authentic. In case of any divergence
between the texts, the English text shall prevail.
For the Swiss Federal Council: For the Government of
the Republic of Turkey:
Hans-Rudolf MERZ
Minister of Finance
Mehmet ŞİMŞEK
Minister of Finance
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P R O T O C O L
At the moment of signing the Agreement between the Swiss Confederation and the
Republic of Turkey for the avoidance of double taxation with respect to taxes on
income, the undersigned have agreed upon the following provisions which shall
constitute an integral part of the Agreement.
1. With reference to Article 4
For the purpose of paragraph 3 of Article 4, “place of effective management” means
the place where substantial business activities are carried on and the management
and control of the business is exercised.
2. With reference to Article 10
In respect of paragraph 3 of Article 10, it is understood that the dividends in the case
of Turkey shall also include the income from investment funds and investment trusts.
3. With reference to Article 11, paragraph 2 (c)
Notwithstanding the rate provided for in paragraph 2(c), the Contracting States may
levy, according to their internal law, a tax up to the rate of 15 %.
4. With reference to Articles 12 and 13
In respect of Articles 12 and 13, it is understood that in the case of any payment
received as a consideration for the sale of a property covered by paragraph 3 of
Article 12, the provisions of Article 13 shall apply, unless it is proved that the
payment in question is not a payment for genuine alienation of the said property. In
such case the provisions of Article 12 shall apply.
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5. With reference to Articles 18 and 19
It is understood that the term “pensions” as used in Articles 18 and 19, respectively,
does not only cover periodic payments, but also includes lump-sum payments.
6. With reference to Article 25
a) It is understood that an exchange of information will only be requested once the
requesting Contracting State has exhausted all regular sources of information
available under the internal taxation procedure.
b) It is understood that the tax authorities of the requesting State shall provide the
following information to the tax authorities of the requested State when making a
request for information under Article 25 of the Agreement:
(i) the name and address of the person(s) under examination or investigation
and, if available, other particulars facilitating that persons identification,
such as date of birth, marital status, tax identification number;
(ii) the period of time for which the information is requested;
(iii) a statement of the information sought including its nature and the form in
which the requesting State wishes to receive the information from the
requested State;
(iv) the tax purpose for which the information is sought;
(v) the name and address of any person believed to be in possession of the
requested information.
c) It is understood that the standard of “foreseeable relevance” is intended to
provide for exchange of information in tax matters to the widest possible extent
and, at the same time, to clarify that the Contracting States are not at liberty to
engage in “fishing expeditions” or to request information that is unlikely to be
relevant to the tax affairs of a given taxpayer. While paragraph 6(b) contains
important procedural requirements that are intended to ensure that fishing
expeditions do not occur, subparagraphs (i) through (v) of paragraph 6(b)
nevertheless are to be interpreted in order not to frustrate effective exchange of
information.
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d) It is further understood that Article 25 of the Agreement shall not commit the
Contracting States to exchange information on an automatic or a spontaneous
basis.
e) It is understood that in case of an exchange of information, the administrative
procedural rules regarding taxpayers’ rights provided for in the requested
Contracting State remain applicable before the information is transmitted to the
requesting Contracting State. It is further understood that this provision aims at
guaranteeing the taxpayer a fair procedure and not at preventing or unduly
delaying the exchange of information process.
IN WITNESS WHEREOF, the undersigned duly authorised thereto, have signed this
Protocol.
Done in duplicate at Berne, this 18th day of June 2010, in the French, Turkish, and
English languages, all three texts being equally authentic. In case of any divergence
between the texts, the English text shall prevail.
For the Swiss Federal Council: For the Government of
the Republic of Turkey:
Hans-Rudolf MERZ
Minister of Finance
Mehmet ŞİMŞEK
Minister of Finance