• Paragraph 1
• Paragraph 2

ARTICLE 3 - General Definitions

Paragraph 1 defines a number of basic terms used in the Convention. Certain others are defined in other articles of the Convention. For example, the term ``resident of a Contracting State'' is defined in Article 4 (Resident). The term ``permanent establishment'' is defined in Article 5 (Permanent Establishment). The terms ``dividends'', ``interest'' and ``royalties'' are defined in Articles 10, 11 and 12, respectively. The introduction to paragraph 1 makes clear that these definitions apply for all purposes of the Convention, unless the context requires otherwise. This latter condition allows flexibility in the interpretation of the treaty in order to avoid unintended results. Terms that are not defined in the Convention are dealt with in paragraph 2.

Paragraph 1

The term ``Contracting State'' is defined in subparagraph 1(a) to mean either the United States or Estonia, depending on the context in which the term is used.

The term ``United States'' is defined in subparagraph 1(b) to mean the United States of America, including the states, the District of Columbia and the territorial sea of the United States. The term does not include Puerto Rico, the Virgin Islands, Guam or any other U.S. possession or territory. The geographical meaning of the term United States also includes the territorial sea of the United States, and for certain purposes, the definition is extended to include the sea bed and subsoil of undersea areas adjacent to the territorial sea of the United States. This extension applies to the extent that the United States exercises sovereignty in accordance with international law for the purpose of natural resource exploration and exploitation of such areas. This extension of the definition applies, however, only if the person, property or activity to which the Convention is being applied is connected with such natural resource exploration or exploitation. Thus, it would not include any activity involving the sea floor of an area over which the United States exercised sovereignty for natural resource purposes if that activity was unrelated to the exploration and exploitation of natural resources.

The term ``Estonia'' is defined in subparagraph 1(c). The term means the Republic of Estonia, and, when used in a geographical sense, means the territory of the Republic of Estonia and any other area adjacent to the territorial waters of the Republic of Estonia within which under the laws of Estonia and in accordance with international law, the rights of Estonia may be exercised with respect to the sea bed and its subsoil and their natural resources.

Subparagraph 1(d) defines the term ``person'' to include an individual, an estate, a trust, a partnership, a company and any other body of persons. The definition is significant for a variety of reasons. For example, under Article 4, only a ``person'' can be a ``resident'' and therefore eligible for most benefits under the treaty. Also, all ``persons'' are eligible to claim relief under Article 25 (Mutual Agreement Procedure).

The term ``company'' is defined in subparagraph 1(e) as a body corporate or an entity treated as a body corporate for tax purposes. Although the Convention does not add ``in the State in which it is organized'', as does the U.S. Model, the result should be the same, as the Commentaries to the OECD Model interpret the language identical to that of the Convention in a manner consistent with the U.S. Model.

The terms ``enterprise of a Contracting State'' and ``enterprise of the other Contracting State'' are defined in subparagraph 1(f) as an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State. The term ``enterprise'' is not defined in the Convention, nor is it defined in the OECD Model or its Commentaries. Despite the absence of a clear, generally accepted meaning for the term ``enterprise'', the term is understood to refer to any activity or set of activities that constitute a trade or business.

Although subparagraph 1(f) does not include the U.S. Model's explicit reference to fiscally transparent enterprises, the negotiators understood that the terms ``enterprise of a Contracting State'' and ``enterprise of the other Contracting State'' encompass an enterprise conducted through an entity (such as a partnership) that is treated as fiscally transparent in the Contracting State where the entity's owner is resident. In accordance with Article 4 (Resident), entities that are fiscally transparent in the country in which their owners are resident are not considered to be residents of a Contracting State (although income derived by such entities may be taxed as the income of a resident, if taxed in the hands of resident partners or other owners). This treatment ensures that an enterprise conducted by such an entity will be treated as carried on by a resident of a Contracting State to the extent its partners or other owners are residents. This approach is consistent with the Code, which under section 875 attributes a trade or business conducted by a partnership to its partners and a trade or business conducted by an estate or trust to its beneficiaries.

An enterprise of a Contracting State need not be carried on in that State. It may be carried on in the other Contracting State or a third state (e.g., a U.S. corporation doing all of its business in Estonia would still be a U.S. enterprise).

Subparagraph 1(g) defines the term ``international traffic''. The term means any transport by a ship or an aircraft operated by an enterprise of a Contracting State except when the transport is operated solely between places within a Contracting State. This definition is applicable principally in the context of Article 8 (Shipping and Air Transport). Shipping and air transport not operated by an enterprise (i.e., a resident) of a Contracting State is excluded from the definition of international traffic in the Convention, whereas the U.S. Model definition of international traffic includes all income from shipping and air transport, other than transport solely between places in a Contracting State, whether or not the operator is a resident of the Contracting States. This narrower definition in the Convention, when applied in the context of paragraph 1 of Article 8, limits the exclusive residence country taxation under Article 8 of income from the lease of ships and aircraft to lease income derived by a resident of a Contracting State that operates ships or aircraft in international traffic. Income from the lease of ships or aircraft that is derived by a lessor that is not an operator of ships or aircraft in international traffic would not fall under Article 8.

The narrower definition of international traffic similarly combines with paragraph 3 of Article 8 (Shipping and Air Transport) to limit the exclusive residence country taxation under Article 8 to income from the use, maintenance or rental of containers derived by persons engaged in international traffic (i.e., persons engaged in the operation of ships or aircraft in international traffic).

The exclusion from international traffic of transport solely between places within a Contracting State means, for example, that carriage of goods or passengers solely between New York and Chicago would not be treated as international traffic, whether carried by a U.S. or a Estonian carrier. The substantive taxing rules of the Convention relating to the taxation of income from transport, principally Article 8 (Shipping and Air Transport), therefore, would not apply to income from such carriage. Thus, if the carrier engaged in internal U.S. traffic were a resident of Estonia (assuming that were possible under U.S. law), the United States would not be required to exempt the income from that transport under Article 8. The income would, however, be treated as business profits under Article 7 (Business Profits), and therefore would be taxable in the United States only if attributable to a U.S. permanent establishment of the Estonian carrier, and then only on a net basis. The gross basis U.S. tax imposed by section 887 would never apply under the circumstances described. If, however, goods or passengers are carried by a carrier resident in Estonia from a non-U.S. port to, for example, New York, and some of the goods or passengers continue on to Chicago, the entire transport would be international traffic. This would be true if the international carrier transferred the goods at the U.S. port of entry from a ship to a land vehicle, from a ship to a lighter, or even if the overland portion of the trip in the United States was handled by an independent carrier under contract with the original international carrier, so long as both parts of the trip were reflected in original bills of lading. For this reason, the Convention refers, in the definition of ``international traffic'', to ``such transport'' being solely between places in the other Contracting State, while the OECD Model refers to the ship or aircraft being operated solely between such places. The language of the Convention, based on U.S. Model language, is intended to make clear that, as in the above example, even if the goods are carried on a different aircraft for the internal portion of the international voyage than is used for the overseas portion of the trip, the definition applies to that internal portion as well as the external portion.

Finally, a ``cruise to nowhere'', i.e., a cruise beginning and ending in a port in the same Contracting State with no stops in a foreign port, would not constitute international traffic.

Subparagraphs 1(h)(i) and (ii) define the term ``competent authority'' for the United States and Estonia, respectively. The U.S. competent authority is the Secretary of the Treasury or his delegate. The Secretary of the Treasury has delegated the competent authority function to the Commissioner of Internal Revenue, who in turn has delegated the authority to the Assistant Commissioner (International). With respect to interpretative issues, the Assistant Commissioner acts with the concurrence of the Associate Chief Counsel (International) of the Internal Revenue Service. The Estonian competent authority is the Minister of Finance or his authorized representative.

The term ``national'', as it relates to the United States and to Estonia, is defined in subparagraphs 1(i)(i) and (ii). This term is relevant for purposes of Articles 19 (Government Service) and 24 (Nondiscrimination). A national of one of the Contracting States is

(1)

an individual who is a citizen or national of that State,

(2)

any legal person, partnership or association deriving its status as such from the law in force in the State where it is established, and in the case of Estonia only,

(3)

a personal enterprise without rights of a legal person deriving its status as such from the laws in force in a Contracting State.

Paragraph 2

Paragraph 2 provides that in the application of the Convention, any term used but not defined in the Convention will have the meaning that it has under the law of the Contracting State whose tax is being applied, unless the context requires otherwise. The paragraph makes clear that if the term is defined under both the tax and non-tax laws of a Contracting State, the definition in the tax law will take precedence over the definition in the non-tax laws. Finally, there also may be cases where the tax laws of a State contain multiple definitions of the same term. In such a case, the definition used for purposes of the particular provision at issue, if any, should be used.

If the meaning of a term cannot be readily determined under the law of a Contracting State, or if there is a conflict in meaning under the laws of the two States that creates difficulties in the application of the Convention, the competent authorities, as indicated in paragraph 3(f) of Article 25 (Mutual Agreement Procedure), may establish a common meaning in order to prevent double taxation or to further any other purpose of the Convention. This common meaning need not conform to the meaning of the term under the laws of either Contracting State.

The reference in paragraph 2 to the internal law of a Contracting State means the law in effect at the time the treaty is being applied, not the law as in effect at the time the treaty was signed. This use of ``ambulatory'' definitions, however, may lead to results that are at variance with the intentions of the negotiators and of the Contracting States when the treaty was negotiated and ratified. The reference in both paragraphs 1 and 2 to the ``context otherwise requiring'' a definition different from the treaty definition, in paragraph 1, or from the internal law definition of the Contracting State whose tax is being imposed, under paragraph 2, refers to a circumstance where the result intended by the Contracting States is different from the result that would obtain under either the paragraph 1 definition or the statutory definition. Thus, flexibility in defining terms is necessary and permitted.

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