DTC agreement between Lesotho and Malawi

8/19/2019 DTC agreement between Lesotho and Malawi

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AGREEMENT

BETWEEN THE GOVERNMENT OF THE KINGDOM OF LESOTHO AND

THE GOVERNMENT OF THE REPUBLIC OF MALAWI

FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE

PREVENTION OF FISCAL EVASION WITH RESPECT TO

TAXES ON INCOME AND ON CAPITAL


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PREAMBLE

The Government of the Kingdom of Lesotho and the Government of the Republic of Malawi

DESIRING to conclude an Agreement for the avoidance of double taxation and the preventionof fiscal evasion with respect to taxes on income and on capital,

HAVE AGREED AS FOLLOWS:

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 and on capital imposed on behalf of aContracting State or of its political subdivisions or local authorities, irrespective of themanner in which they are levied.

2. There shall be regarded as taxes on income and on capital, all taxes imposed on total

income, on total capital, or on elements of income or of capital, including taxes on gainsfrom the alienation of movable or immovable property, taxes on the total amounts ofwages or salaries paid by enterprises as well as taxes on capital appreciation.

3. The existing taxes to which this Agreement shall apply are:

(a) in Lesotho

(i) the income tax; and(ii) the capital gains tax;

(hereinafter referred to as “Lesotho tax”); and

(b) in Malawi

(i) income tax;(ii) fringe benefits tax;(iii) dividends tax; and(iv) non-resident tax

(hereinafter referred to as “Malawi tax”).


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4. This Agreement shall apply also to any identical or substantially similar taxes that areimposed after the date of signature of the Agreement in addition to, or in place of, theexisting taxes. The competent authorities of the Contracting States shall notify eachother of any significant changes that have been made in their respective taxation laws.

ARTICLE 3

GENERAL DEFINITIONS

1. For the purposes of this Agreement, unless the context otherwise requires:

(a) the term “Lesotho” means the sovereign Kingdom of Lesotho comprising all theareas that immediately before 4 October 1966 were comprised in the formercolony of Basutoland together with such other areas that may, in accordancewith international law, be declared by an Act of the Lesotho Parliament to formpart of Lesotho;

(b) the term “Malawi” means the Republic of Malawi and includes all territorycomprising Malawi in accordance with the Constitution of the Republic ofMalawi;

(c) the terms “a Contracting State” and “the other Contracting State” mean Lesothoor Malawi, as the context requires;

(d) the term “business” includes the performance of professional services and ofother activities of an independent character;

(e) the term “company” means any body corporate or any entity that is treated as a

body corporate for tax purposes;

(f) the term “competent authority” means:

(i) in Lesotho, the Commissioner General for the Lesotho Revenue Authority or an authorised representative of the Commissioner General;and

(ii) in Malawi, the Commissioner General of the Malawi Revenue Authorityor an authorised representative of the Commissioner General;

(g) the term “enterprise” applies to the carrying on of any business;

(h) the terms “enterprise of a Contracting State” and “enterprise of the otherContracting State” mean, respectively, an enterprise carried on by a resident ofa Contracting State and an enterprise carried on by a resident of the otherContracting State;

(i) the term “international traffic” means any transport by aircraft or rail or roadtransport vehicle operated by an enterprise of a Contracting State, except whenthe aircraft or rail or road transport vehicle is operated solely between places inthe other Contracting State;


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(j) the term “national” means:

(i) any individual possessing the nationality or citizenship of thatContracting State; and

(ii) any legal person or association deriving its status as such from the lawsin force in that Contracting State;

(k) the term “person” includes an individual, a company and any other body ofpersons that is treated as an entity for tax purposes.

2. As regards the application of the provisions of the Agreement at any time by aContracting State, any term not defined therein shall, unless the context otherwiserequires, have the meaning that it has at that time under the law of that State for thepurposes of the taxes to which the Agreement applies, any meaning under theapplicable tax laws of that State prevailing over a meaning given to the term under otherlaws of that State.

ARTICLE 4

RESIDENT

1. For the purposes of this Agreement, the term “resident of a Contracting State” meansany person who, under the laws of that State, is liable to tax therein by reason of thatperson’s domicile, residence, place of management, place of incorporation or anyother criterion of a similar nature, and also includes that State and any politicalsubdivision or local authority thereof. This term, however, does not include anyperson who is liable to tax in that State in respect only of income from sources in that

state or capital situated therein.

2. Where, by reason of the provisions of paragraph 1, an individual is a resident of bothContracting States, then that individual’s status shall be determined as follows:

(a) the individual shall be deemed to be a resident solely of the State in which apermanent home is available to the individual; if a permanent home is availableto the individual in both States, the individual shall be deemed to be a residentsolely of the State with which the individual’s personal and economic relationsare closer (centre of vital interests);

(b) if the State in which the centre of vital interests of the individual is situatedcannot be determined, or if the individual does not have a permanent homeavailable in either State, the individual shall be deemed to be a resident solelyof 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, theindividual shall be deemed to be a resident solely of the State of which theindividual is a national;

(d) if the individual is a national of both States or of neither of them, the competentauthorities of the Contracting States shall settle the question by mutualagreement.


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3. Where by reason of the provisions of paragraph 1 a person other than an individual is a

resident of both Contracting States, the competent authorities of the Contracting States

shall endeavour to determine by mutual agreement the Contracting State of which that

person shall be deemed to be a resident for the purposes of this Agreement. In the

absence of a mutual agreement by the competent authorities of the Contracting States,

the person shall not be considered a resident of either Contracting State for the purposesof claiming any benefits provided by the Agreement, except those provided by Article 27.

ARTICLE 5

PERMANENT ESTABLISHMENT

1. For the purposes of this Agreement, the term “permanent establishment” means a fixedplace 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; and(f) a mine, an oil or gas well, a quarry or any other place of extraction or

exploitation of natural resources.

3. The term “permanent establishment” shall be deemed to include:

a) a building site, a construction, assembly or installation project or any supervisoryactivity in connection with such site or project, but only where such site, projector activity continues for a period of more than six (6) months;

(b) the furnishing of services, including consultancy services, by an enterprisethrough employees or other personnel engaged by an enterprise for suchpurpose, but only where activities of that nature continue (for the same or aconnected project) within the Contracting State for a period or periodsexceeding in the aggregate sixty (60) days in any twelve-month periodcommencing or ending in the fiscal year concerned;

(c) for an individual, the performing of services in a Contracting State by thatindividual, but only if the individual’s stay in that State, for the purpose ofperforming those services, is for a period or periods aggregating more than sixty(60) days within any twelve month period commencing or ending in the fiscalyear concerned;

(d) an installation or structure used for the exploration for natural resourcesprovided that the installation or structure continues for a period of not less thanninety (90) days.


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4. Notwithstanding the preceding provisions of this Article, the term “permanentestablishment” shall be deemed not to include:

(a) the use of facilities solely for the purpose of storage or display of goods ormerchandise belonging to the enterprise;

(b) the maintenance of a stock of goods or merchandise belonging to the enterprisesolely for the purpose of storage or display;

(c) the maintenance of a stock of goods or merchandise belonging to the enterprisesolely for the purpose of processing by another enterprise;

(d) the maintenance of a fixed place of business solely for the purpose ofpurchasing goods or merchandise, or of collecting information, for theenterprise;

(e) the maintenance of a fixed place of business solely for the purpose of carryingon, for the enterprise, any other activity of a preparatory or auxiliary character;and

(f) the maintenance of a fixed place of business solely for any combination ofactivities mentioned in subparagraphs (a) to (e), provided that the overall activity

of the fixed place of business resulting from this combination is of a preparatoryor auxiliary character.

5. Notwithstanding the provisions of paragraphs 1 and 2, where a person – other than anagent of an independent status to whom paragraph 6 applies – is acting in aContracting State on behalf of an enterprise of the other Contracting State, thatenterprise shall be deemed to have a permanent establishment in the first-mentionedContracting State in respect of any activities which that person undertakes for theenterprise, if such a person:

(a) has and habitually exercises in that State an authority to conclude contracts inthe name of the enterprise, unless the activities of such person are limited to

those mentioned in the paragraph 4 which, if exercised through a fixed place ofbusiness, would not make this fixed place of business a permanentestablishment under the provisions of that paragraph; or

(b) has no such authority, but habitually maintains in the first-mentioned ContractingState a stock of goods or merchandise belonging to the enterprise from whichsuch person regularly fills orders or makes deliveries on behalf of the enterprise.

6. An enterprise shall not be deemed to have a permanent establishment in a ContractingState merely because it carries on business in that State through a broker, generalcommission agent or any other agent of an independent status, provided that suchpersons are acting in the ordinary course of their business.

7. Notwithstanding the preceding provisions of this Article, an insurance enterprise of aContracting State shall, except in regard to re-insurance, be deemed to have apermanent establishment in the other Contracting State if it collects premiums in theterritory of that other State or insures risks situated therein through a person otherthan an agent of an independent status to whom paragraph 6 applies.

8. The fact that a company which is a resident of a Contracting State controls or iscontrolled by a company which is a resident of the other Contracting State, or whichcarries on business in that other State (whether through a permanent establishment orotherwise), shall not of itself constitute either company a permanent establishment ofthe other.


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ARTICLE 6

INCOME FROM IMMOVABLE PROPERTY

1. Income derived by a resident of a Contracting State from immovable property (includingincome from agriculture or forestry) situated in the other Contracting State may be taxedin that other State.

2. The term “immovable property” shall have the meaning which it has under the law of theContracting State in which the property in question is situated. The term shall in anycase include property accessory to immovable property, livestock and equipment usedin agriculture and forestry, rights to which the provisions of general law respectinglanded property apply, usufruct of immovable property and rights to variable or fixedpayments as consideration for the working of, or the right to work, mineral deposits,sources and other natural resources. Aircraft and rail or road transport vehicles shall notbe regarded as immovable property.

3. The provisions of paragraph 1 shall apply to income derived from the direct use, lettingor use in any other form of immovable property.

4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovableproperty of an enterprise.

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 apermanent establishment situated therein. If the enterprise carries on business asaforesaid, the profits of the enterprise may be taxed in the other State but only so muchof them as is attributable to (a) that permanent establishment (b) sales in that otherState of goods or merchandise of the same or similar kind as those sold through thatpermanent establishment; or (c) other business activities carried on in that other Stateof the same or similar kind as those effected through that permanent establishment.

2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting Statecarries on business in the other Contracting State through a permanent establishmentsituated therein, there shall in each Contracting State be attributed to that permanentestablishment 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 similarconditions and dealing wholly independently with the enterprise of which it is apermanent establishment.

3. In determining the profits of a permanent establishment, there shall be allowed asdeductions expenses which are incurred for the purposes of the business of thepermanent establishment, including executive and general administrative expenses soincurred, whether in the Contracting State in which the permanent establishment issituated or elsewhere. However, no such deduction shall be allowed in respect ofamounts, if any, paid (otherwise than towards reimbursement of actual expenses) bythe permanent establishment to the head office of the enterprise or any of its otheroffices, by way of royalties, fees or other similar payments in return for the use ofpatents or other rights, or by way of commission, for specific services performed or formanagement, or, except in the case of a banking enterprise, by way of interest on


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moneys lent to the permanent establishment. Likewise, no account shall be taken, inthe determination of the profits of a permanent establishment, for amounts charged(otherwise than towards reimbursement of actual expenses), by the permanentestablishment to the head office of the enterprise or any of its other offices, by way ofroyalties, fees or other similar payments in return for the use of patents or other rights,or by way of commission for specific services performed or for management, or, exceptin the case of a banking enterprise by way of interest on moneys lent to the head officeof the enterprise or any of its other offices.

4. In so far as it has been customary in a Contracting State to determine the profits to beattributed to a permanent establishment on the basis of an apportionment of the totalprofits of the enterprise to its various parts, nothing in paragraph 2 shall preclude thatContracting State from determining the profits to be taxed by such an apportionment asmay be customary. The method of apportionment adopted shall, however, be such thatthe result shall be in accordance with the principles contained in this Article.

5. 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.

6. For the purposes of the preceding paragraphs, the profits to be attributed to thepermanent establishment shall be determined by the same method year by year unlessthere is good and sufficient reason to the contrary.

7. Where profits include items of income which are dealt with separately in other Articles ofthis Agreement, then the provisions of those Articles shall not be affected by theprovisions of this Article.

ARTICLE 8

INTERNATIONAL TRANSPORT

1. Profits of an enterprise of a Contracting State from the operation of aircraft or rail orroad transport vehicles in international traffic shall be taxable only in that State.

2. For the purposes of this Article, profits from the operation of aircraft or rail or roadtransport vehicles in international traffic shall include:

(a) profits derived from the rental on a bare boat basis of aircraft used ininternational traffic,

(b) profits derived from the rental of rail or road transport vehicles,

(c) profits derived from the use, or rental of containers,

if such profits are incidental to the profits to which the provisions of paragraph 1 apply.

3. The provisions of paragraph 1 shall also apply to profits from the participation in a pool,a joint business or an international operating agency.


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ARTICLE 9

ASSOCIATED ENTERPRISES

1. Where

(a) an enterprise of a Contracting State participates directly or indirectly in themanagement, control or capital of an enterprise of the other Contracting State,or

(b) the same persons participate directly or indirectly in the management, control orcapital of an enterprise of a Contracting State and an enterprise of the otherContracting State,

and in either case conditions are made or imposed between the two enterprises in theircommercial or financial relations which differ from those which would be made betweenindependent 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 soaccrued, 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 - andtaxes accordingly - profits on which an enterprise of the other Contracting State hasbeen charged to tax in that other State and the profits so included are profits whichwould have accrued to the enterprise of the first-mentioned State if the conditions madebetween the two enterprises had been those which would have been made betweenindependent enterprises, then that other State, if it agrees that the adjustment made bythe first mentioned State is justified both in principle and as regards the amount, shallmake an appropriate adjustment to the amount of the tax charged therein on thoseprofits. In determining such adjustment, due regard shall be had to the other provisions

of this Agreement and the competent authorities of the Contracting States shall ifnecessary consult each other.

3. Where paragraph 2 requires a Contracting State to make an appropriate adjustment toreflect the inclusion and taxation of profits by the other Contracting State falling withinparagraph 1, the State making the appropriate adjustment shall not be required to takeinto account any penalty, whether tax or non-tax, imposed by that other ContractingState.

ARTICLE 10

DIVIDENDS

1. Dividends paid by a company which is a resident of a Contracting State to a resident ofthe other Contracting State may be taxed in that other State.

2. However, dividends paid by a company which is a resident of a Contracting State mayalso be taxed in that State and according to the laws of that State, but if the beneficialowner of the dividends is a resident of the other Contracting State, the tax so chargedshall not exceed;

a) ten (10) per cent of the gross amount of the dividends if the beneficial owner is a

company which holds directly at least fifteen (15) per cent of the capital of thecompany paying the dividends;


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b) fifteen (15) per cent of the gross amount of the dividends in all other cases.

The competent authorities of the Contracting States shall settle the mode of application

of these limitations by mutual agreement.

This paragraph shall not affect the taxation of the company in respect of the profits outof which the dividends are paid.

3. The term “dividends” as used in this Article means income from shares or other rightsparticipating in profits (not being debt-claims), as well as income from other corporaterights which is subjected to the same taxation treatment as income from shares by thelaws of the Contracting State of which the company making the distribution is a resident.

4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of thedividends, being a resident of a Contracting State, carries on business in the otherContracting State of which the company paying the dividends is a resident through apermanent establishment situated therein and the holding in respect of which the

dividends are paid is effectively connected with such permanent establishment. In suchcase, the provisions of Article 7 shall apply.

5. Where a company which is a resident of a Contracting State derives profits or incomefrom the other Contracting State, that other State may not impose any tax on thedividends paid by the company, except in so far as such dividends are paid to aresident of that other State or in so far as the holding in respect of which the dividendsare paid is effectively connected with a permanent establishment situated in that otherState, nor subject the company’s undistributed profits to a tax on undistributed profits,even if the dividends paid or the undistributed profits consist wholly or partly of profits orincome arising in such other State.

6. Where a company which is a resident of a Contracting State has a permanentestablishment in the other Contracting State, nothing in this Agreement shall beconstrued as preventing the other Contracting State from imposing an income tax(referred to as “branch profits tax”) on the repatriated income of the permanentestablishment in addition to any income tax imposed in accordance with this Agreement on the chargeable income of the permanent establishment; provided thatany branch profits tax so imposed shall not exceed ten (10) per cent of the amount ofthe repatriated income.

7. No relief shall be available under this Article if it was the main purpose or one of themain purposes of any person concerned with the creation or assignment of theshares or other rights in respect of which the dividend is paid to take advantage of

this Article by means of that creation or assignment.

ARTICLE 11

INTEREST

1. Interest arising in a Contracting State and paid to a resident of the other ContractingState may be taxed in that other State.

2. However, interest arising in a Contracting State may also be taxed in that Stateaccording to the laws of that State, but if the beneficial owner of the interest is a residentof the other Contracting State, the tax so charged shall not exceed ten (10) per cent ofthe gross amount of the interest.


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The competent authorities of the Contracting States shall by mutual agreement settlethe mode of application of these limitations.

3. The term “interest” as used in this Article means income from debt-claims of every kind,whether or not secured by mortgage and whether or not carrying a right to participate inthe debtor’s profits, and in particular, income from government securities and incomefrom bonds or debentures, including premiums and prizes attaching to such securities,bonds or debentures. Penalty charges for late payment shall not be regarded as interestfor the purposes of this Article. The term interest shall not include any item which istreated as a dividend under the provisions of Article 10.

4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of theinterest, being a resident of a Contracting State, carries on business in the otherContracting State in which the interest arises through a permanent establishmentsituated therein and the debt-claim in respect of which the interest is paid is effectivelyconnected with such permanent establishment. In such case, the provisions of Article 7

shall apply.

5. Interest shall be deemed to arise in a Contracting State when the payer is a resident ofthat State. Where, however, the person paying the interest, whether that person is aresident of a Contracting State or not, has in a Contracting State a permanentestablishment in connection with which the indebtedness on which the interest is paidwas incurred, and such interest is borne by such permanent establishment, then suchinterest shall be deemed to arise in the State in which the permanent establishment issituated.

6. Where, by reason of a special relationship between the payer and the beneficial owneror 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 havebeen agreed upon by the payer and the beneficial owner in the absence of suchrelationship, 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 thelaws of each Contracting State, due regard being had to the other provisions of this Agreement.

7. No relief shall be available under this Article if it was the main purpose or one of themain purposes of any person concerned with the creation or assignment of the debt-claim in respect of which the interest is paid to take advantage of this Article by meansof that creation or assignment.

ARTICLE 12

ROYALTIES

1. Royalties arising in a Contracting State and paid to a resident of the other ContractingState may be taxed in that other State.

2. However, royalties arising in a Contracting State may also be taxed in that Stateaccording to the laws of that State, but if the beneficial owner of the royalties is aresident of the other Contracting State, the tax so charged shall not exceed ten (10) percent of the gross amount of the royalties.


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The competent authorities of the Contracting States shall by mutual agreement settlethe mode of application of these limitations.

3. The term “royalties” as used in this Article means payments of any kind received as aconsideration for the use of, or the right to use, any copyright (including the copyright ofliterary, artistic, scientific work, broadcasts or cinematograph films, motion pictures ormovies), any patent, trade mark, design or model, plan, secret formula or process, orfor the use of, or the right to use, industrial, commercial or scientific equipment or forinformation concerning industrial, commercial or scientific experience.

4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of theroyalties, being a resident of a Contracting State, carries on business in the otherContracting State in which the royalties arise through a permanent establishmentsituated therein and the right or property in respect of which the royalties are paid iseffectively connected with such permanent establishment. In such case, the provisionsof Article 7 shall apply.

5. Royalties shall be deemed to arise in a Contracting State when the payer is a residentof that State. Where, however, the person paying the royalties, whether that person is aresident of a Contracting State or not, has in a Contracting State a permanentestablishment with which the right or property in respect of which the royalties are paidis effectively connected, and such royalties are borne by such permanentestablishment, then such royalties shall be deemed to arise in the State in which thepermanent establishment is situated.

6. Where, by reason of a special relationship between the payer and the beneficial owneror between both of them and some other person, the amount of the royalties, havingregard to the use, right or information for which they are paid, exceeds the amountwhich 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 taxableaccording to the laws of each Contracting State, due regard being had to the otherprovisions of this Agreement.

7. No relief shall be available under this Article if it was the main purpose or one of themain purposes of any person concerned with the creation or assignment of the rights inrespect of which the royalties are paid to take advantage of this Article by means of thatcreation or assignment.

ARTICLE 13

TECHNICAL FEES

1. Technical fees arising in a Contracting State and paid to a resident of the otherContracting State may be taxed in that other State.

2. However, technical fees arising in a Contracting State may also be taxed in that Stateaccording to the laws of that State, but if the beneficial owner of the technical fees is aresident of the other Contracting State, the tax so charged shall not exceed ten (10) percent of the gross amount of the technical fees.

3. The term “technical fees” as used in this Article means payments of any kind to anyperson, other than to an employee of the person making the payments, in considerationfor any service of a technical, managerial or consultancy nature, unless the payment is


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the reimbursement of actual expenses incurred by that person with respect to theservice.

4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of thetechnical fees, being a resident of a Contracting State, carries on business in the otherContracting State in which the technical fees arise, through a permanent establishmentsituated therein and the technical fees are effectively connected with such permanentestablishment. In such case, the provisions of Article 7 shall apply.

6. Technical fees shall be deemed to arise in a Contracting State when the payer is aresident of that State. Where, however, the person paying the technical fees, whetherthat person is a resident of a Contracting State or not, has in a Contracting State apermanent establishment in connection with which the obligation to pay the technicalfees was incurred, and such technical fees are borne by the permanent establishment,then such technical fees shall be deemed to arise in the State in which the permanentestablishment is situated.

6. Where, by reason of a special relationship between the payer and the beneficial owneror between both of them and some other person, the amount of the technical fees paidexceeds the amount which would have been agreed upon by the payer and thebeneficial owner in the absence of such relationship, the provisions of this Article shallapply only to the last-mentioned amount. In such case, the excess part of the paymentsshall remain taxable according to the laws of each Contracting State, due regard beinghad to the other provisions of this Agreement.

ARTICLE 14

CAPITAL GAINS

1. Gains derived by a resident of a Contracting State from the alienation of immovableproperty referred to in Article 6 and situated in the other Contracting State may be taxedin that other State.

2. Gains from the alienation of movable property forming part of the business property of apermanent establishment which an enterprise of a Contracting State has in the otherContracting State, including such gains from the alienation of such a permanentestablishment (alone or with the whole enterprise), may be taxed in that other State.

3. Gains of an enterprise of a Contracting State from the alienation of, aircraft or rail orroad transport vehicles operated in international traffic or movable property pertaining to

the operation of such, aircraft or rail or road transport vehicles, shall be taxable only inthat State.

4. Gains derived by a resident of a Contracting State from the alienation of shares,deriving more than fifty 50 per cent of their value directly or indirectly from immovableproperty situated in the other Contracting State may be taxed in that other State.

5. Gains from the alienation of any property other than that referred to in the precedingparagraphs of this Article, shall be taxable only in the Contracting State of which thealienator is a resident.

6.


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ARTICLE 15

INCOME FROM EMPLOYMENT

1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similarremuneration derived by a resident of a Contracting State in respect of an employmentshall be taxable only in that State unless the employment is exercised in the otherContracting State. If the employment is so exercised, such remuneration as is derivedtherefrom may be taxed in that other State.

2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of aContracting State in respect of an employment exercised in the other Contracting Stateshall 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 inthe aggregate 183 days in any twelve-month period commencing or ending inthe fiscal year concerned, and

(b) the remuneration is paid by, or on behalf of, an employer who is not a residentof the other State, and(c) the remuneration is not borne by a permanent establishment which the

employer has in the other State.

3. Notwithstanding the preceding provisions of this Article, remuneration derived in respectof an employment exercised aboard aircraft or rail or road transport vehicle operated ininternational traffic by an enterprise of a Contracting State may be taxed in that State.

ARTICLE 16

DIRECTORS’ FEES

Directors’ fees and similar payments derived by a resident of a Contracting State in thatperson’s capacity as a member of the board of directors of a company which is a resident of theother Contracting State may be taxed in that other State.

ARTICLE 17

ENTERTAINERS AND SPORTSPERSONS

1. Notwithstanding the provisions of Articles 7 and 15, income derived by a resident of a

Contracting State as an entertainer, such as a theatre, motion picture, radio or televisionartiste, or a musician, or as a sportsperson, from that person’s personal activities assuch 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 asportsperson in that person’s capacity as such accrues not to the entertainer orsportsperson but to another person, that income may, notwithstanding the provisions of Articles 7 and 15 be taxed in the Contracting State in which the activities of theentertainer or sportsperson are exercised.

3. Income derived by a resident of a Contracting State from activities exercised in theother Contracting State as envisaged in paragraphs 1 and 2, shall be exempt from taxin that other State if the visit to that other State is supported wholly or mainly by publicfunds of the first-mentioned Contracting State, a political subdivision or a local authority


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thereof, or takes place under a cultural agreement or arrangement between theGovernments of the Contracting States.

ARTICLE 18

PENSIONS AND ANNUITIES

1. Subject to the provisions of paragraph 2 of Article 19, pensions, annuities, and othersimilar remuneration arising in a Contracting State and paid to a resident of the otherContracting State, may be taxed in the first-mentioned State.

2. The term “annuity” means a stated sum payable periodically at stated times during lifeor during a specified or ascertainable period of time under an obligation to make thepayments in return for adequate and full consideration in money or money’s worth.

3. Notwithstanding the provisions of paragraph 1, pensions paid and other payments

made under a public scheme which is part of the social security system of a ContractingState, a political subdivision or a local authority thereof shall be taxable only in thatState.

ARTICLE 19

GOVERNMENT SERVICE

1. (a) Salaries, wages and other similar remuneration, paid by a Contracting State or apolitical subdivision or a local authority thereof to an individual in respect ofservices rendered to that State or subdivision or authority shall be taxable only

in that State.

(b) However, such salaries, wages and other similar remuneration shall be taxableonly in the other Contracting State if the services are rendered in that State andthe individual is a resident of that State who:

(i) is a national of that State; or(ii) did not become a resident of that State solely for the purpose of

rendering the services.

2. (a) Notwithstanding the provisions of paragraph 1, pensions and other similarremuneration 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 ofservices rendered to that State or subdivision or authority shall be taxable onlyin that State.

(b) However, such pension shall be taxable only in the other Contracting State if theindividual is a resident of, and a national of, that State.

3. The provisions of Articles 15, 16, 17 and 18 shall apply to salaries, wages, pensions,and other similar remuneration in respect of services rendered in connection with abusiness carried on by a Contracting State or a political subdivision or a local authoritythereof.


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ARTICLE 20

STUDENTS AND BUSINESS APPRENTICES

A student or business apprentice who is present in a Contracting State solely for the purposeof the student’s or business apprentice’s education or training and who is, or immediatelybefore being so present was, a resident of the other Contracting State, shall be exempt fromtax in the first-mentioned State on payments received from outside that first-mentioned Statefor the purposes of the student or business apprentice’s maintenance, education or training.

ARTICLE 21

PROFESSORS AND TEACHERS

1. Notwithstanding the provisions of Article 15, a professor or teacher who makes atemporary visit to one of the Contracting States for a period not exceeding two years

from the date of first arrival in that State, solely for the purpose of teaching or carryingout research at a university, college, school or other educational institution in that Stateand who is, or immediately before such visit was, a resident of the other ContractingState shall, in respect of remuneration for such teaching or research, be exempt fromtax in the first-mentioned State, provided that such remuneration is derived by theprofessor or teacher from outside that State.

2. The provisions of this Article shall not apply to income from research if such research isundertaken not in the public interest but wholly or mainly for the private benefit of aspecific person or persons.

ARTICLE 22

OTHER INCOME

1. Items of income of a resident of a Contracting State, wherever arising, not dealt within 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 fromimmovable property as defined in paragraph 2 of Article 6, if the recipient of suchincome, being a resident of a Contracting State, carries on business in the otherContracting State through a permanent establishment situated therein and the rightor property in respect of which the income is paid is effectively connected with such

permanent establishment. In such case the provisions of Article 7 shall apply.

3. Notwithstanding the provisions of paragraphs 1 and 2, items of income of a residentof a Contracting State not dealt with in the foregoing Articles of the Agreement andarising in the other Contracting State may also be taxed in that other State.


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ARTICLE 23

CAPITAL

1. Capital represented by immovable property referred to in Article 6, owned by aresident of a Contracting State and situated in the other Contracting State, may betaxed in that other State.

2. Capital represented by movable property forming part of the business property of apermanent establishment which an enterprise of a Contracting State has in the otherContracting State may be taxed in that other State.

3. Capital represented by aircraft or rail or road transport vehicle operated ininternational traffic and by movable property pertaining to the operation of suchaircraft or rail or road transport vehicle, shall be taxable only in the Contracting Statein which the enterprise is resident.

4. All other elements of capital of a resident of a Contracting State shall be taxable onlyin that State.

ARTICLE 24

ELIMINATION OF DOUBLE TAXATION

Double taxation shall be eliminated as follows:

(a) In Lesotho, Malawi tax paid by residents of Lesotho in respect of income taxable inMalawi in accordance with the provisions of this Agreement shall be deducted from

the taxes due according to Lesotho fiscal law. Such deduction shall not, however,exceed that part of the Lesotho tax, as computed before the deduction is givenwhich is attributable to the income which, in accordance with the provisions of this Agreement, may be taxed in Malawi.

(b) In Malawi, Lesotho tax paid by residents of Malawi in respect of income taxable inLesotho in accordance with the provisions of this Agreement shall be deducted fromthe taxes due according to Malawi fiscal law. Such deduction shall not, however,exceed that part of the Malawi tax, as computed before the deduction is given whichis attributable to the income which, in accordance with the provisions of this Agreement, may be taxed in Lesotho.

ARTICLE 25

NON-DISCRIMINATION

1. Nationals of a Contracting State shall not be subjected in the other Contracting State toany taxation or any requirement connected therewith, which is other or moreburdensome than the taxation and connected requirements to which nationals of thatother State in the same circumstances, in particular with respect to residence, are ormay be subjected.

2. The taxation on a permanent establishment which an enterprise of a Contracting Statehas in the other Contracting State shall not be less favourably levied in that other Statethan the taxation levied on enterprises of that other State carrying on the same


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activities. This provision shall not be construed as obliging a Contracting State to grantto residents of the other Contracting State any personal allowances, reliefs andreductions for taxation purposes on account of civil status or family responsibilitieswhich it grants to its own residents.

3. Except where the provisions of paragraph 1 of Article 9, paragraph 6 of Article 11,paragraph 6 of Article 12 or paragraph 6 of Article 13 apply, interest, royalties, technicalfees and other disbursements paid by an enterprise of a Contracting State to a residentof the other Contracting State shall, for the purpose of determining the taxable profits ofsuch enterprise, be deductible under the same conditions as if they had been paid to aresident of the first-mentioned State.

4. Enterprises of a Contracting State, the capital of which is wholly or partly owned orcontrolled, 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 requirementconnected therewith which is other or more burdensome than the taxation andconnected requirements to which other similar enterprises of the first-mentioned State

are or may be subjected.

5. The provisions of this Article shall not be construed as preventing a Contracting State

from imposing on the profits attributable to a permanent establishment in that

Contracting State of a company which is a resident of the other Contracting State, a tax

at a rate which does not exceed by five (5) percentage points the rate of income tax on

domestic companies of the first mentioned Contracting State.

6. The provisions of this Article shall, notwithstanding the provisions of Article 2, applyto taxes of every kind and description.

ARTICLE 26

MUTUAL AGREEMENT PROCEDURE

1. Where a person considers that the actions of one or both of the Contracting Statesresult or will result for that person in taxation not in accordance with the provisions ofthis Agreement, that person may, irrespective of the remedies provided by the domesticlaw of those States, present a case to the competent authority of the Contracting Stateof which the person is a resident. The case must be presented within three years from

the first notification of the action resulting in taxation not in accordance with theprovisions of the Agreement.

2. The competent authority shall endeavour, if the objection appears to it to be justifiedand if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutualagreement with the competent authority of the other Contracting State, with a view tothe avoidance of taxation which is not in accordance with the Agreement. Anyagreement reached shall be implemented notwithstanding any time limits in thedomestic law of the Contracting States.

3. The competent authorities of the Contracting States shall endeavour to resolve bymutual 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 taxationin cases not provided for in the Agreement.


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4. The competent authorities of the Contracting States may communicate with each other

directly for the purpose of reaching an agreement in the sense of the precedingparagraphs.

5. Where,

(a) under paragraph 1, a person has presented a case to the competent authorityof a Contracting State on the basis that the actions of one or both of theContracting States have resulted for that person in taxation not in accordancewith the provisions of this Agreement, and

(b) the competent authorities are unable to reach an agreement to resolve thatcase pursuant to paragraph 2 within three years from the presentation of thecase to the competent authority of the other Contracting State,

any unresolved issues arising from the case shall be submitted to arbitration if either

competent authority so requests. The person who has presented the case shall benotified of the request. These unresolved issues shall not, however, be submitted toarbitration if a decision on these issues has already been rendered by a court oradministrative tribunal of either State. The arbitration decision shall be binding onboth States and shall be implemented notwithstanding any time limits in the domesticlaws of these States unless both competent authorities agree on a different solutionwithin six months after the decision has been communicated to them or unless aperson directly affected by the case does not accept the mutual agreement thatimplements the arbitration decision. The competent authorities of the ContractingStates shall by mutual agreement settle the mode of application of this paragraph.

6. The provisions of paragraph 5 shall not apply to cases falling within paragraph 3 of

Article 4.

ARTICLE 27

EXCHANGE OF INFORMATION

1. The competent authorities of the Contracting States shall exchange such information asis foreseeably relevant for carrying out the provisions of this Agreement or to theadministration or enforcement of the domestic laws concerning taxes of every kind anddescription imposed on behalf of the Contracting States, or of their political subdivisions

in so far as the taxation thereunder is not contrary to the Agreement. The exchange ofinformation is not restricted by Articles 1 and 2.

2. Any information received under paragraph 1 by a Contracting State shall be treated assecret in the same manner as information obtained under the domestic laws of thatState and shall be disclosed only to persons or authorities (including courts andadministrative bodies) concerned with the assessment or collection of, the enforcementor prosecution in respect of, the determination of appeals in relation to the taxesreferred to in paragraph 1, or the oversight of the above. Such persons or authoritiesshall use the information only for such purposes. They may disclose the information inpublic 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 Statesand the competent authority of the supplying State authorises such use.


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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 administrativepractice of that or of the other Contracting State;

(b) to supply information which is not obtainable under the laws or in the normalcourse of the administration of that or of the other Contracting State;

(c) to supply information which would disclose any trade, business, industrial,commercial or professional secret or trade process, or information thedisclosure of which would be contrary to public policy (ordre public ).

4. If information is requested by a Contracting State in accordance with this Article, theother Contracting State shall use its information gathering measures to obtain therequested 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 tothe limitations of paragraph 3 but in no case shall such limitations be construed topermit a Contracting State to decline to supply information solely because it has nodomestic interest in such information.

5. In no case shall the provisions of paragraph 3 be construed to permit a ContractingState 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 capacityor because it relates to ownership interests in a person.

ARTICLE 28

ASSISTANCE IN THE COLLECTION OF TAXES

1. The Contracting States shall lend assistance to each other in the collection ofrevenue claims. This assistance is not restricted by Articles 1 and 2. The competentauthorities of the Contracting States may by mutual agreement settle the mode ofapplication of this Article.

2. The term “revenue claim” as used in this Article means an amount owed in respect oftaxes of every kind and description imposed on behalf of the Contracting States, or oftheir political subdivisions or local authorities, in so far as the taxation thereunder isnot contrary to this Agreement or any other instrument to which the Contracting

States are parties, as well as interest, administrative penalties and costs of collectionor conservancy related to such amount.

3. When a revenue claim of a Contracting State is enforceable under the laws of thatState and is owed by a person who, at that time, cannot, under the laws of that State,prevent its collection, that revenue claim shall, at the request of the competentauthority of that State, be accepted for purposes of collection by the competentauthority of the other Contracting State. That revenue claim shall be collected by thatother State in accordance with the provisions of its laws applicable to theenforcement and collection of its own taxes as if the revenue claim were a revenueclaim of that other State.

4. When a revenue claim of a Contracting State is a claim in respect of which that Statemay, under its law, take measures of conservancy with a view to ensure its


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collection, that revenue claim shall, at the request of the competent authority of thatState, be accepted for purposes of taking measures of conservancy by thecompetent authority of the other Contracting State. That other State shall takemeasures of conservancy in respect of that revenue claim in accordance with theprovisions of its laws as if the revenue claim were a revenue claim of that other Stateeven if, at the time when such measures are applied, the revenue claim is notenforceable in the first-mentioned State or is owed by a person who has a right toprevent its collection.

5. Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by aContracting State for purposes of paragraph 3 or 4 shall not, in that State, be subjectto the time limits or accorded any priority applicable to a revenue claim under thelaws of that State by reason of its nature as such. In addition, a revenue claimaccepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, inthat State, have any priority applicable to that revenue claim under the laws of theother Contracting State.

6. Proceedings with respect to the existence, validity or the amount of a revenue claimof a Contracting State shall not be brought before the courts or administrative bodiesof the other Contracting State.

7. Where, at any time after a request has been made by a Contracting State underparagraph 3 or 4 and before the other Contracting State has collected and remittedthe relevant revenue claim to the first-mentioned State, the relevant revenue claimceases to be:

(a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owedby a person who, at that time, cannot, under the laws of that State, prevent its

collection, or

(b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, takemeasures of conservancy with a view to ensure its collection,

the competent authority of the first-mentioned State shall promptly notify thecompetent authority of the other State of that fact and, at the option of the otherState, the first-mentioned State shall either suspend or withdraw its request.

8. In no case shall the provisions of this Article be construed so as to impose on aContracting State the obligation:

(a) to carry out administrative measures at variance with the laws andadministrative practice of that or of the other Contracting State;

(b) to carry out measures which would be contrary to public policy (ordre public );

(c) to provide assistance if the other Contracting State has not pursued allreasonable measures of collection or conservancy, as the case may be,available under its laws or administrative practice;

(d) to provide assistance in those cases where the administrative burden for thatState is clearly disproportionate to the benefit to be derived by the other

Contracting State.


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ARTICLE 29

MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS

Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions orconsular posts under the general rules of international law or under the provisions of specialagreements.

ARTICLE 30

ENTRY INTO FORCE

1. Each Contracting States shall notify the other of the completion of the proceduresrequired by its law for the bringing into force of this Agreement. The Agreement shallenter into force on the date of receipt of the later of these notifications.

2. The provisions of this Agreement shall apply:

(a) with regard to taxes withheld at source, in respect of amounts paid or creditedon or after the first day of the second month following the date upon which the Agreement enters into force; and

(b) with regard to other taxes, in respect of taxable years beginning on or after thefirst day of the second month following the date upon which the Agreemententers into force.

ARTICLE 31

TERMINATION

1. This Agreement shall remain in force indefinitely but either of the Contracting Statesmay terminate the Agreement through the diplomatic channel, by giving to the otherContracting State written notice of termination not later than 30 June of any calendaryear starting five years after the year in which the Agreement entered into force.

2. In such event the Agreement shall cease to apply:

(a) with regard to taxes withheld at source, in respect of amounts paid or creditedafter the end of the calendar year in which such notice is given; and

(b) with regard to other taxes, in respect of taxable years beginning after the end ofthe calendar year in which such notice is given.

IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed this Agreement.

DONE at .............................. in duplicate, this ………………. day of .....................................20..

______________________________ ______________________________FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF THEKINGDOM OF LESOTHO REPUBLIC OF MALAWI

Documents

DTC agreement between Lesotho and Malawi