Article 13 - Capital Gain - International Taxation - Income Tax

Article 13 - Capital Gain As per OECD Model Tax Convention Confers Right to Tax Capital Gain Capital gain from transfer of Immovable property 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. [ Para 1 of Article 13 ] Capital Gain from transfer of Movable property 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, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other State. [ Para 2 of Article 13 ] Capital gain from transfer of ships or aircraft Gains that an enterprise of a Contracting State that operates ships or aircraft in international traffic derives from the alienation of such ships or aircraft, or of movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State. [ Para 3 of Article 13 ] Capital gain from transfer of interest or share Gains derived by a resident of a Contracting State from the alienation of shares or comparable interests , such as interests in a partnership or trust , may be taxed in the other Contracting State if these shares or comparable interests derived more than 50 per cent of their value directly or indirectly from immovable property, as defined in Article 6, situated in that other State, at any time during the 365 days preceding the alienation . [ Para 4 of Article 13 ] Gain from transfer of any property above mentioned Gains from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4, shall be taxable only in the Contracting State of which the alienator is a resident. [ Para 5 of Article 13 ] As per UN Model Tax Convention Article 13 of the United Nations Model Convention reproduces Article 13 of the OECD Model Convention except The UN Model Convention varies from the OECD Model convention in the Following aspect Capital gain from Movable Property 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 Gain from the alienation 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. [ Para 2 of Article 13 ] Capital gain from transfer of share or comparable interest in partnership or trust Gains derived by a resident of a Contracting State from the alienation of shares or comparable interests , such as interests in a partnership or trust , may be taxed in the other Contracting State if these shares or comparable interests derived more than 50 per cent of their value directly or indirectly from immovable property, as defined in Article 6, situated in that other State, at any time during the 365 days preceding the alienation. [ Para 4 of Article 13 ] Gains, other than those to which paragraph 4 applies, derived by a resident of a Contracting State from the alienation of shares of a company, or comparable interests , such as interests in a partnership or trust , which is a resident of the other Contracting State, may be taxed in that other State if the alienator, held directly or indirectly at least ___ per cent [the percentage is to be established through bilateral negotiations] of the capital of that company or entity, at any time during the 365 days preceding such alienation . [ Para 5 of Article 13] Subject to paragraphs 4 and 5 , gains derived by a resident of a Contracting State from the alienation of shares of a company, or comparable interests of an entity, such as interests in a partnership or trust, may be taxed in the other Contracting State if, at any time during the 365 days preceding such alienation, (a) the alienator held directly or indirectly at least ___ per cent of the capital of that company or entity, , [the percentage is to be established through bilateral negotiations]; and (b) these shares or comparable interests derived more than 50 per cent of their value directly or indirectly from (i) a property any gain from which would have been taxable in that other State in accordance with the preceding provisions of this Article if that gain had been derived by a resident of the first-mentioned State from the alienation of that property at that time, or (ii) any combination of property referred to in subdivision (i). [ Para 7 of Article 13 ] Capital gain from transfer of any right granted by law Gains derived by a resident of a Contracting State from the alienation of a right granted under the law of the other Contracting State which allows the use of resources that are naturally present in that other State and that are under the jurisdiction of that other State, may be taxed in that other State. [ Para 6 of Article 13 ] Capital Gain from other than mentioned in this Article Gains from the alienation of any property other than that referred to in paragraphs 1 to 7 shall be taxable only in the Contracting State of which the alienator is a resident. [ Para 8 of Article 13 ] Analysis This article provides for the taxation of income arising from transfer of a capital assets, including transfer of shares. Both UN and OECD Model Convention give exclusive right to residence state in case of gains from the alienation of any property other than covered in the other paragraphs of this Article.