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HMRC internal manual

Double Taxation Relief Manual

From
HM Revenue & Customs
Updated
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DT: Malawi: double taxation agreement, Article 2: General definitions

  1. In the present Agreement, unless the context otherwise requires:

  2. The term `United Kingdom` means Great Britain and Northern Ireland.
  3. The term `Malawi` means the Republic of Malawi.
  4. The terms `one of the territories` and `the other territory` mean the United Kingdom or Malawi, as the context requires.
  5. The term `tax` means United Kingdom tax or Malawi tax, as the context requires.
  6. The term `person` includes any body of persons, corporate or not corporate.
  7. The term `company` includes any body corporate.
  8. The terms `resident of the United Kingdom` and `resident of Malawi` mean respectively any person who is resident in the United Kingdom for the purposes of United Kingdom tax and is not resident in Malawi and any person who is resident in Malawi and is not resident in the United Kingdom for the purposes of United Kingdom tax and a company shall be regarded as resident in the United Kingdom if its business is managed and controlled in the United Kingdom and as resident in Malawi if its business is managed and controlled in Malawi.
  9. The terms `resident of one of the territories` and `resident of the other territory` mean a person who is a resident of the United Kingdom or a person who is a resident of Malawi, as the context requires.
  10. The terms `United Kingdom enterprise` and `Malawi enterprise` mean respectively an industrial or commercial enterprise or undertaking carried on by a resident of the United Kingdom and an industrial or commercial enterprise or undertaking carried on by a resident of Malawi; and the terms `enterprise of one of the territories` and `enterprise of the other territory` mean a United Kingdom enterprise or a Malawi enterprise, as the context requires.
  11. The term `industrial or commercial enterprise or undertaking` includes an enterprise or undertaking engaged in mining, agricultural or pastoral activities or in the business of banking, insurance, life insurance or dealing in investments, and the term `industrial or commercial profits` includes profits from such activities or business and also includes rents or royalties in respect of cinematograph films but does not include income in the form of dividends, interest, rents, royalties (other than rents or royalties in respect of cinematograph films), management charges or remuneration for personal services.
  12. The term `permanent establishment`, when used with respect to an enterprise of one of the territories, means a branch, management, mine, farm or other fixed place of business, but does not include an agency unless the agent has, and habitually exercises, a general authority to negotiate and conclude contracts on behalf of such enterprise or has a stock of merchandise from which he regularly fills orders on its behalf. In this connection -

(i) An enterprise of one of the territories shall not be deemed to have a permanent establishment in the other territory merely because it carries on business dealings in that other territory through a bona fide broker or general commission agent acting in the ordinary course of his business as such.

(ii) The fact that an enterprise of one of the territories maintains in the other territory a fixed place of business exclusively for the purchase of goods or merchandise shall not of itself constitute that fixed place of business a permanent establishment of the enterprise.

(iii) The fact that a company which is a resident of one of the territories has a subsidiary company which is a resident of the other territory or which is engaged in trade or business in that other territory (whether through a permanent establishment or otherwise) shall not of itself constitute that subsidiary company a permanent establishment of its parent company.

  1. Where under this Agreement any income is exempt from tax in one of the territories if (with or without other conditions) it is subject to tax in the other territory, and that income is subject to tax in that other territory by reference to the amount thereof which is remitted to or received in that other territory, the exemption to be allowed under this Agreement in the first-mentioned territory shall apply only to the amount so remitted or received.
  2. The terms `United Kingdom tax` and `Malawi tax`, as used in this Agreement, do not include any tax or other amount payable in the United Kingdom or Malawi which is payable in respect of any default or omission in relation to the taxes which are the subject of this Agreement or which represents a penalty imposed under the law of the United Kingdom or Malawi relating to those taxes.
  3. In the application of the provisions of the present Agreement by one of the Contracting Governments any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting Government relating to the taxes which are the subject of the present Agreement.