AMENDMENT
PROTOCOL OF THE AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
AND
THE KINGDOM OF THE NETHERLANDS

CONCERNING
THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME WHICH WAS SIGNED IN JAKARTA ON MARCH 5, 1973

Article I
THE AMENDMENT OF THE AGREEMENT

The provisions of the Agreement between the Republic of Indonesia and the Kingdom of the Netherlands, which was signed in Jakarta on March 5, 1973, amended and added as follows:

A. Title of the Agreement had been changed as follows :

"The Agreement between the Republic of Indonesia and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income."

B.

Articles 2 and 3 paragraph 2 of the Agreement abolished and changed as follows:

"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 gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

"3.

The existing taxes to which the Agreement apply are, in particular:

(a) in the case of Indonesia:
-

The income tax imposed as the Law of Income Tax of 1984 and as long as it is regulated in the Article 33 paragraphs (2) a and (3) of the Agreement, a Company Tax imposed according to The Ordination of Company Tax of 1925 and Tax on Interest, Dividend and Royalty, which imposed according to the Law of Income Tax on Interest, Dividend and Royalty of 1970 as long as the said Article 33, paragraphs (2) a and (3), shall come into force as from the stipulation date.
(hereinafter referred to as "Indonesian tax"),

(b) In the case of the Netherlands:
- de inkonstenbelasting (income tax),
-

de loohbelasting (wages tax),

-

de vennootschapsbelasting (company tax), including a part of the Government on income of natural resources which collected as the Additional Law of 1810, with regard to Convention of 1967 or as the Law of Continental Shelf Mine of 1965.

- de dividendbelasting (dividend tax),
(hereinafter referred to as "Netherlands tax").

C. 1.

Letter (c) of paragraph 1 of Article 3 of the Agreement abolished and changed with:

"(c)

The term "Indonesia" means the territory of land, sea and islands of the Republic of Indonesia as stipulated in the Constitution and the International Law the parts of the adjacent territory, over which the Republic of Indonesia has Sovereign Rights and Jurisdiction in accordance with provision of the United Nations of International Sea Convention of 1982.

2.

Letter (g) of paragraph 1 of Article 3 of the Agreement amended become letter f) and put after letter f) :

"(g)

The term "International Traffic Line" means every transportation by a ship or an Aircraft which operated by the enterprise which has a residence of effective management in either one or both country, except that ship or aircraft operated solely between the other place of the countries.

(h) The term "Resident" means :
(1)

All individuals who have citizenship either from one or both countries.

(2)

All legal persons, partnership and association which established according to the prevailed constitution in either of both countries.

D.

In paragraph 2 of Article 4 of the Agreement the word of Property is abolished.

E. 1.

Paragraphs 3, 4, 5, 6 and 7 of Article 5 of the Agreement amended its number become the paragraph 4, 5, 6, 7 and 8

2.

Letter (h) of paragraph 2 of Article 5 of the Agreement abolished and changed into a new paragraph 3 which say as follows :

"3. The term "Permanent Establishment" also includes:
(a)

A building site or construction, or assembly project, installation or supervisory activities in connection therewith, where such site, project or activity continues for a period of more than six months.

(b)

The furnishing of services including services, consultancy by an enterprise through an employees or other personnel worked by this enterprise for a certain purpose, but only for the activities of that nature continue ( for same project or related project ) within the country for a period or periods exceeding in the aggregate three (3) months within any twelve-month period.

3.

In a new paragraph 5 of Article 5 of the Agreement referring to paragraph 6 changed with referring to paragraph 7.

4.

In a new paragraph 6 of Article 5 of the Agreement referring to paragraph 6 changed with referring to paragraph 7.

F.

In paragraph 2 of Article 6 of the Agreement words of "Thus, all kinds of credits, except securities, and bonds which guaranteed with a mortgage," is abolished.

G. Added a new Article next after Article 7 of the Agreement:

"Article 7 A
SHIPPING AND AIR TRANSPORT

1.

Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that Contracting State where an effective management of the enterprise is situated.

2.

If the residency of effective management of the enterprise is on the ship, thus the residency of effective management regarded in a country of the Main Port is situated, if there is no such a Main Port, in a country where the ship operator is situated.

3.

The provision of paragraph 1 also prevails on profits which is from the participation of the enterprise combination, business cooperation or in the International Business Representative but the limitation of profit regarded as from the enterprise in accordance with share proportion within its collective operation.

H.

Article 8 in which already in the Agreement become paragraph 1 and the next of a new paragraph soon and after this paragraph:

"2.

If either one of the two State is correcting on profits of an enterprise in this State and imposed on tax, while part of profits which corrected is also profits of the enterprise imposed on tax in the other State and the profits should be received by the enterprise in the first said causing of the conditions made between independent enterprises, thus the other State will adjust on the amount of profits which are taxed from the other State. To adjust, it should concern the other provision in the Agreement and if it is necessary the competent authority of both countries will consult to each other.

I. 1.

Paragraph 2 and 3 of Article 9 of the Agreement is abolished and changed as follows:

"2.

However, the dividend may also be taxed in the State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of dividend is a resident of the other State , so the tax which imposed not exceeding:

(a)

10 % of gross amount of the dividends if the beneficial owner is an enterprise ( except the Union) holds directly at least 25 per cent of the capital of the company paying the dividends.

(b)

15 % of gross amount of the dividends in other matters: The other country or every financial institution owned or controlled by the Government.

2.

Paragraph 5 of Article 10 of the Agreement is abolished and changed as follows:

"5.

The term "interest" which used in this paragraph means income from all kinds of credits whether secured by mortgage or not and whether carrying a right to participate in profits or not as well as income from securities, and debentures including a premium and bonded prize, securities and debt claims. The Fine on over due payment may not be regarded as interest in this paragraph. However, the term "Interest" is not included the payment which regulated in Article 9.

K. 1.

Paragraphs 2 and 3 of Article 11 of the Agreement is abolished and changed become as follows:

"2.

However, such royalties may also be taxed in the State in which they arise and according to the laws of that State, but the tax so charged shall not exceed in the aggregate 20 per cent of the gross amount of the royalties.

3.

The term "Royalty" which used in this paragraph means all kind of payments received as a remuneration on using or a right to use every right of literary, artistic or scientific work - including cinematograph films and films or tapes for radio and television broadcasting - patent, trademark, pattern, or model, plan, formula or secret processing, or use, or a right to use industrial equipment, commercial or science or for information in industry, commercial or science experience. However, such term does not include the payment for technical remuneration.

2.

In paragraph 4 of Article 11 of the Agreement reference to paragraphs 2 and 3 changed with reference to paragraph 2.

3.

In paragraph 5 of Article 11 of the Agreement reference to paragraphs 1, 2 and 3 changed with reference to paragraphs 1 and 2.

L. 1.

Paragraphs 3 and 4 of Article 13 of the Agreement given a number becomes paragraphs 4 and 5.

"2.

In Article 13 inserted a new paragraph after paragraph 2 :

3.

Gains from the alienation of movable property which relates to shipping and aircraft operating shall be taxed in a State in which a residence of the effective management of an enterprise situated. For the purpose of this paragraph prevails the provisions of the Article 7 A paragraph 2

2.

In New Paragraph 4 of the Article 13 of the Agreement reference to paragraphs 1 and 2 changed with reference to paragraphs 1, 2 and 3.

3.

A new paragraph 5 of the Agreement abolished and changed becomes as follows:

"5.

The provisions of paragraph 4 shall not affect the right of each of the States to levy according to its own law a tax on gains from the alienation of shares or "jouissance" rights in a company, the capital of which is wholly or partly divided into shares and which is a resident of that State, derived by an individual who is a resident of the other State and has been a resident of the first-mentioned State in the course of the last five years preceding the alienation of the shares or "Jouissance" rights."

M.

Paragraph 1 of Article 14 of the Agreement abolished and changed becomes as follows:

"1.

Income derived by a resident of one of the two States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other State for the purpose of performing his activities or he is in other State for a period of aggregate 91 days within any period of 12 months. If he has such a fixed base or lives in other State for such a period, the income may be taxed in that other State but only so much of it as is attributable to that fixed base or derived in other State for mentioned above period.

MM.

It is only in English text, paragraph 1 Article 16 of the Agreement shall be changed becomes paragraph 2 and paragraph 2 of the same Article shall be changed becomes paragraph 1.

N. Article 22 of the Agreement entirely abolished.
O.

Chapter IV of the Agreement which consist of Article 23 entirely abolished.

P. 1.

Paragraphs 1 to 7 of Article 24 of the Agreement changed and abolished becomes as follows:

1.

Each of the two States, when imposing tax on its resident, may include in the basis upon which such taxes are imposed, the items of income or capital, which according to the provisions of this Agreement may be taxed in other State.

2.

However, if a resident of Netherlands receives a part of the income which according to Articles 6, 7, 9, paragraph 6, Article 10 paragraph 6, Article 11 paragraph 5, Article 13 paragraphs 1 and 2, Article 14, Article 15 paragraph 1, Article 16, paragraph 2, Article 19 paragraph 2, shall be taxed in Indonesia and bears to the total income or capital which forms the basis of the imposed tax as mentioned in paragraph 1, thus the Netherlands should exempt parts of such income, and allow to deduct its tax. This deduction counted according to provision of the Law of the Netherlands for the Avoidance of Double Taxation. For this purpose, parts of that income regarded in which includes the amount of income exempted from the Netherlands' tax according to this provision.

3.

Further, the Netherlands shall allow a deduction from the Netherlands tax computed in accordance with the preceding paragraphs of this Article with respect of the items of income which may be taxed in Indonesia according to Article 9 paragraph 2, Article 10 paragraph 2 and Article 11 paragraph 2 and Article 18 subparagraph a) this Agreement shall be taxed in Indonesia as long as the income is included in the basis mentioned in paragraph 1 of this Article. The amount of this deduction should be equal with the tax paid in Indonesia for part of the income, but not exceeding the amount of deduction which is allowed if the income put in a way of such income exempted from the Netherlands tax according to provisions of the Netherlands Law for the Avoidance of Double Taxation.

4.

If a resident of Indonesia receives a part of income which imposed tax in Netherlands according to the provisions of this Agreement and bears to the total income which forms the basis of the imposed tax as mentioned in paragraph, thus the Netherlands indebted tax relates to income shall be allowed as a credit to Indonesian Tax which imposed to that resident. However, the amount of credit should not be exceeding from the part of tax, which collected in Indonesia according to each part of the income. For the purpose of this paragraph determining the amount of tax collected in the Netherlands, bonus, premium of capital investment and the payments to disinvestment as mentioned in the Law of the Investment Account Capital in Netherlands (wet Investeringskerening) shall not be considered.

2.

Reference to Article 13 paragraph 4 in paragraph 8 of Article 24 changed with reference to Article 13 paragraph 5 and paragraph 8 given a new number become paragraph 5.

3. Article 24 given a new number become Article 22
Q. The following of a new Article shall be put after a new Article 22.

"Article 23
NON-DISCRIMINATION

1.

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States.

2.

The taxation on a permanent establishment which and enterprises of a Contracting State has in the other Contracting State and taxation on independent personal services shall not be less favorably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. This provision can not be interpreted as the obligation one of the two States to give to a resident of the other State a family discount, reduction, any deduction for the purpose of imposing tax, according to civil status or family burden as given to a resident of its own State.

3.

Except the provisions of paragraph 1 Article 8, paragraph 8 of Article 10, or paragraph 7 of Article 11 prevails, thus determining the taxable income of enterprise from one of the Contracting State, interest, royalties and other disbursements paid by a resident of a Contracting State to a resident of the other Contracting State shall be deductible under the same conditions, as if they have been paid to a resident of the first-mentioned State.

4.

Enterprise of a Contracting State, the capital of which or wholly or partly owned or controlled, 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 requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are or may be subjected.

5.

The term" Taxation" which used in this Articlemeans all kind of taxes, except foreign tax collected by a local authority in Indonesia.

R.

Paragraph 1 Article 25 abolished and changed become as follows:

"1

Where a resident of one of the two States considers that the actions of one or both of the two States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the State of which he is a resident or if the case relates to the paragraph 1 becomes national. Such case should be submitted in the period of 3 years since the first notice of action causing the imposing on tax which is not according to the provisions of this Agreement.

S.

Article 26 of the Agreement abolished and changed become as follows:

"Article 26
EXCHANGE OF INFORMATION

1.

The competent authorities of the two States shall exchange such information as is necessary for carrying out the provisions of this Agreement, in particular for the prevention of fraud, and for the administration of statutory provisions against legal avoidance concerning taxes covered by this Agreement. Exchange of information is limited to the provision of paragraph 1. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those concerned with assessment or collection of the taxes, implementing the constitution or deciding the burden regarding taxes included which are the subject of this Agreement. Person/entity or competent authority may only supply information for the above purposes. They can disclose it in a public court or in the decisions of the court.

2.

In no case shall the provisions of paragraph 1 be construed so as to impose on one of the two States the obligation:

(a)

to carry out administrative measures at variance with the laws or the administrative practice of that or of the other State;

(b)

to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other State;

(c)

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

T.

Article 28 of the Agreement abolished and changed become as follows :

"Article 28
TERRITORIAL EXTENSION

1.

This Agreement may be extended, either in its entirety or with any necessary modifications, to either or both of the countries of Aruba or the Nederlandse Antillen, if the country concerned imposes taxes substantially similar in character to those to which this Agreement applies. Any such extension shall take effect from such date and subject to such modifications and conditions, including conditions as to termination, as may be specified and agreed in notes to be exchanged through diplomatic channels.

2.

Unless otherwise agreed the termination of the Agreement shall not also terminate the application of the Agreement to any country to which it has been extended under this Article.

U.

Chapter V to VII is given a new number become Chapter IV to VI and Article 25 to 30 is given a new number become Article 24 to 29. This new Chapter IV to VI contains of Article 23 to 27 and 28 and 29.

Article II
THE AMENDMENTS ON THE PROTOCOL OF THE AGREEMENT

The provisions of protocol of the Agreement between the Republic of Indonesia and the Kingdom of the Netherlands in Jakarta dated March 5, 1973, changed to be as follows:

Part I to XI of the Agreement Protocol changed and abolished become as follows:

"I
AD ARTICLE 3, PARAGRAPH 1d

It is agreed that the term "person and entity" includes partnership and a limited partnership with the condition that its partners are a resident of either one country.

II
AD ARTICLE 4, PARAGRAPH

It is agreed that the term " a resident of country does not include of a permanent establishment as mentioned in letter c of paragraph ( 3 ) of Article 2 of Law of Income Tax of 1984 which prevails in Indonesia.

III
AD ARTICLE 5

Contrary to the criteria is a basis that a permanent establishment considered exist according to the understanding of Article 5, the competent authority of two States can approve that a permanent establishment shall not be considered exist.

IV
AD ARTICLE 5, PARAGRAPH 3

It is agreed that the representative offices which operated in Indonesia according to the permission given by Indonesian Finance Minister or Indonesian Trade Minister, is not a permanent establishment, except the representative office conducting the other activities than activities which have a preparatory or auxiliary character.

V
AD ARTICLE 7

  1. In connection with Article 7 paragraphs 1 and 2 if the enterprise of one of State sell goods or commercial goods or exercise business activity in other State, through a permanent establishment, the profits of this permanent establishment shall not be determined on the basis of the amount of which received by the enterprise, but it should be determined only basis of income related to the selling activity or business which is really from that permanent establishment.
    Especially, in the matter of a contract for a survey, provide an information or equipment development or places of industry, commercial, or science or public services, if that enterprise has a permanent establishment, so the profits of such a permanent establishment shall not be determined on the basis of contract amount, but it should be determined only on the basis of a part of contract that is really executed by that permanent establishment in a State where a permanent establishment is situated. Profits related to a part of contract executed by Head Office only be imposed on tax in a State where enterprise residence.

  2. Applying of Article 7 paragraph 3 , is not given a reduction, concerning the amount of which Head Offices or one of the other offices imposed, permanent establishment as royalty, remuneration, or a similar payments for using a patent or other rights or as commission payment for a certain services or as a management cost, or except the enterprise running on banking business, as an interest on money lent to that permanent establishment, except the real amounts which already issued as a cost. Also in determining the gains of a permanent establishment shall not be considered the amounts as above, except the real amounts which already issued as a cost imposed by a permanent establishment to Head Office or to one of the other offices.

VI
AD ARTICLE 7

Whenever an enterprise is situated in one of a State running partly or wholly the business in other State through a permanent establishment situated in that State, tax can be collected by the other State according to Article 7 paragraph 1, includes an additional tax on profits from that permanent establishment which should be paid in that other State, but additional tax which imposed not exceeding 10 % from 90 % of that profits, after deducted additional tax and taxes on other income imposed in the other State.

To ratify this provision, it should be considered that under the provisions of the Agreement of the Avoidance of Double Taxation the profits derived by a resident of Netherlands from a permanent establishment in Indonesia entirely exempted from tax in Netherlands.

VII
AD ARTICLE 8

However, it is understood that the fact that related enterprises had agreed the plans, like plans on sharing costs, the Agreement of a public services, for or on the basis of allocation of executive costs, public administration, techniques, commercial, research and developing and other similar cost, not by its own is not meant in Article 8 paragraph 1.

VIII
AD ARTICLE 10 PARAGRAPH 3 ( iii )

The Financial Institution that mentioned in Article 10 paragraph 3 ( iii ) especially includes: The Netherlands of Finance Enterprise for Developing (Nederlandse Financlerings Maatschappij voor Ontwikkelingslanden N.V) and bank of The Netherlands Investation for the Developing Countries (Nederlandse Investeringsbank Ontwikelingslanden N.V).

IX
AD ARTICLE 11

In connection with Article 11 paragraph 3 the term technical services includes researches or surveys are in fact scientific, geologist or techniques, contracts engineering includes blue print which related it, consultancy services or supervisor.

X
AD ARTICLE 9, 10 AND 11

Whenever tax had been collected from its sources exceeding the amount of which indebted according to provisions of Articles 9, 10 and 11, the restitution application on excessive tax should be submitted to competent authority of a State who collected that tax, in period of three (3) years after the calendar year tax is collected.

XI
AD ARTICLE 15

Whenever one of the product State from individual partnership such as a legacy which has not been shared, treated as an income of that partnership, while in other State that income is treated as an individuals income which comes along with the individual partnership, the competent authority of both State consult together to solve the difficulties that might arise.

ARTICLE III
ENTRY INTO FORCE

  1. This Agreement shall enter into force after the expiration of thirty days following the date on which the Contracting Governments have notified each other in writing that the formalities constitutionally required in their respective countries have been complied with, and its provisions shall have effect for taxable years and periods beginning on or after January 1, 1988.

  2. Notwithstanding the provisions of paragraph 1 Part II Articleshall into force on after January 1, 1984

IN WITNESS WHEREOF of the undersigned, duly authorized, have signed this Protocol.

DONE at Kuala Lumpur, on Monday dated July 22, 1991, in two originals, each in the Indonesian, Netherlands and English languages, the three texts being equally authentic. In case there is any divergence of interpretation between the Indonesian and Netherlands texts, the English texts shall prevail.

FOR THE GOVERNMENT OF
THE REPUBLIC OF INDONESIA
sgd
ALI ALATAS, SH
FOREIGN MINISTER
FOR THE GOVERNMENT OF THE
KINGDOM OF THE NETHERLANDS
sgd
H. VAN DEN BROEK
FOREIGN MINISTER