1. Tax shall be determined in the case of a resident of the Fed-
eral Republic of Germany as follows:
a) Unless foreign tax credit is to be allowed under sub-para-
graph b), there shall be exempted from the assessment basis
of the German tax any item of income arising in Malta and any
item of capital situated within Malta which, according to this
Agreement, may be taxed in Malta. The Federal Republic of
Germany, however, retains the right to take into account in
the determination of its rate of tax the items of income and
capital so exempted. In the case of items of income from
dividends the preceding provision shall apply only to such
dividends as are paid to a company (not including partner-
ships) being a resident of the Federal Republic of Germany
by a company being a resident of Malta at least 10 per cent
of the capital of which is owned directly by the German
company and which were not deducted when determining
the profits of the company distributing these dividends.
There shall be exempted from the assessment basis of the
taxes on capital any shareholding the dividends of which, if
paid, would be exempted according to the foregoing sen-
tences.
b) Subject to the provisions of German tax law regarding credit
for foreign tax, there shall be allowed as a credit against Ger-
man tax payable in respect of the following items of income
the Malta tax paid under the laws of Malta and in accordance
with this Agreement:
aa) dividends not dealt with in sub-paragraph a) above;
bb) items of income that may be taxed in Malta according to
paragraph 2 of Article 13;
cc) directors’ fees;
dd) items of income of artistes and sportsmen.
c) For the purposes of sub-paragraph b) of this paragraph,
aa) dividends referred to in sub-paragraph b) of paragraph 3
of Article 10, and
bb) dividends paid out of profits benefiting out of any time-
limited exemption or reduction of tax granted under
incentive provisions contained in the Malta law designed
to promote economic development to the extent that
such exemption or reduction is granted for profits from
industrial or manufacturing activities, agriculture, fishing,
tourism (including restaurants and hotels) and other
activities as may be agreed upon by the competent
authorities, provided that the activities have been carried
out within Malta,
shall be subject to German tax on the amount after the
deduction of Malta tax paid (if any) on the profits out of
which the dividends are paid under the laws of Malta and in
accordance with this Agreement, and a tax of 20 per cent
calculated on the gross amount of the dividends shall be
deemed to have been paid in Malta. The provisions of this
sub-paragraph shall apply for the first ten years during which
this Agreement is effective. This period may be extended by
mutual agreement between the competent authorities.
d) The provisions of sub-paragraph b) shall apply instead of the
provisions of sub-paragraph a) to items of income as defined
in Articles 7 and 10 and to the assets from which such income
is derived if the resident of the Federal Republic of Germany
does not prove that the gross income of the permanent
establishment in the business year in which the profit has
been realised or of the company resident in Malta in the busi-
ness year for which the dividends were paid was derived
exclusively or almost exclusively from activities within the
meaning of nos. 1 to 6 of paragraph 1 of section 8 of the
German Law on External Tax Relations (Außensteuergesetz)
or from participations within the meaning of paragraph 2 of
section 8 of that Law; the same shall apply to immovable
property used by a permanent establishment (paragraph 4 of
Article 6) and to profits from the alienation of such immovable
property (paragraph 1 of Article 13 ) and of the movable
property forming part of the business property of the per-
manent establishment (paragraph 3 of Article 13 ).
e) Where a company being a resident of the Federal Republic of
Germany distributes income derived from sources within
Malta, sub-paragraph a) shall not preclude the compensa-
tory imposition of corporation tax on such distributions in
accordance with the provisions of German tax law.
f)
Notwithstanding the provisions of sub-paragraph a) double
taxation shall be avoided by allowing a tax credit as laid down
in sub-paragraph b)
aa) if in the Contracting States items of income or capital are
placed under differing provisions of the Agreement or
attributed to different persons (except pursuant to Arti-
cle 9) and this conflict cannot be settled by a procedure
in accordance with paragraph 3 of Article 25 and if as a
result of this difference in placement or attribution the
relevant income or capital would remain untaxed or be
too lowly taxed, or
bb) if after proper consultation and subject to the limitations
of its domestic law a Contracting State notifies the other
Contracting State through diplomatic channels of other
income to which it intends to apply the provisions of this
paragraph. The notification shall not take effect until the
first day of the calendar year following the year in which
the notification was made and all legal requirements
under the domestic law of the notifying State for the noti-
fication to take effect have been fulfilled.
2. Tax shall be determined in the case of a resident of Malta as
follows:
Subject to the provisions of the law of Malta regarding the
allowance of a credit against Malta tax in respect of foreign tax,
where, in accordance with the provisons of this Agreement, there
is included in a Malta assessment income from sources within
the Federal Republic of Germany, the German tax paid on such
income shall be allowed as a credit against Malta tax payable
thereon.