Zambia - Permanent establishment

Article 5. Permanent establishment

Representative office

1. For the purposes of this Convention, the term “permanent establishment” means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term “permanent establishment” includes especially:a)a place of management; b)a branch; c)an office; d)a factory; e)a workshop; and f)a mine, an oil or gas well, a quarry or any other place of extraction or exploitation of natural resources.

Building site/ project

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

a)a building site, a construction, assembly or installation project or any supervisory activity in connection with such site, project or activity, but only where such site, project or activity continues for a period of more than 183 days;

b)the furnishing of services, including consultancy services, by an enterprise through employees or other personnel engaged by an enterprise for such purpose, but only where activities of that nature continue (for the same or a connected project) within the Contracting State for a period or periods exceeding in the aggregate 183 days in any twelve-month period commencing or ending in the fiscal year concerned;

c)for an individual, the performing of services in a Contracting State by that individual, but only if the indi-vidual’s stay in that State, for the purpose of performing those services, is for a period or periods aggre-gating more than 183 days within any twelve month period commencing or ending in the fiscal year con-cerned; and

d)an installation or structure used for the exploration for natural resources other than in the area referred to in paragraph 4, provided that the installation or structure continues for a period of not less than 183 days.

4. Notwithstanding the provisions of paragraphs 1, 2 and 3, an enterprise of a Contracting State which car-ries on activities in the territorial sea of the other Contracting State or in any area beyond and adjacent to its territorial sea as meant in subparagraph b) of paragraph 1 of Article 3, within which that other Contracting State, in accordance with international law, exercises jurisdiction or sovereign rights (offshore activities), shall be deemed to carry on, in respect of those activities, business in that other State through a permanent establishment situated therein, unless the activities in question are carried on in the other State for a period or periods of less than in the aggregate 30 days in any twelve month period.

5. For the purposes of paragraph 4 of this Article, the term “offshore activities” shall be deemed not to include:

a)one or any combination of the activities mentioned in paragraph 7;

b)towing or anchor handling by ships primarily designed for that purpose and any other activities per-formed by such ships; and

c)the transport of supplies or personnel by ships or aircraft in international traffic.

6. For the purposes of determining the duration of the offshore activities under paragraph 4 in connection with paragraph 5, where an enterprise carrying on offshore activities in the other Contracting State is associated with another enterprise and that other enterprise continues, as part of the same project, the same off-shore activities that are or were being carried on by the first-mentioned enterprise, and the aforementioned activities are in the aggregate carried on by both enterprises for a period of at least 30 days, each enterprise shall be deemed to carry on its activities for a period of at least 30 days in any twelve month period. For the purposes of this paragraph, an enterprise shall be regarded as associated with another enterprise if one enterprise holds directly or indirectly at least one third of the capital of the other enterprise or if a person holds directly or indirectly at least one third of the capital of both enterprises.

7. 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 belong-ing 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)he 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 carrying on, 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 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.

Agent

8. Notwithstanding the provisions of paragraphs 1, 2 and 4, where a person – other than an agent of an inde-pendent status to whom paragraph 9 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 enter-prise 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 7 which, if exercised through a fixed place of business, would not make this fixed place of busi-ness a permanent establishment under the provisions of that paragraph.

Independent agent

9. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commis-sion agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, and conditions are made or imposed between that enterprise and the agent in their commercial and financial relations which differ from those which should have been made between inde-pendent enterprises, the agent will not be considered an agent of an independent status within the meaning of this paragraph.

Controlled company

10. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.