and who is, therefore, not affected by this Article, may, nevertheless, be subject to tax in the host
country under Articles 15 or 16 if the tests for taxability under those Articles are met. For
example, if an entertainer who is an independent contractor earns only $1,400 of income for the
calendar year, but the income is attributable to a fixed base regularly available to him in the State
of performance, that State may tax his income under Article 15.
Since it is frequently not possible to know until year end whether the income an
entertainer or athlete derived from performance in a Contracting State will exceed $1,500,
nothing in the Convention precludes that Contracting State from withholding tax during the year
and refunding after the close of the year if the taxability threshold has not been met. If, at the end
of the year, it is determined that the entertainer or athlete is not subject to tax in that Contracting
State under the provisions of paragraph 1 of Article 18, that State is obligated to refund the tax
withheld only upon application at the end of the taxable year concerned.
Income derived from a Contracting State by an entertainer or athlete who is a resident of
the other Contracting State in connection with his activities as such, but from other than actual
performance, such as royalties from record sales and payments for product endorsements, is not
covered by this Article, but by other articles of the Convention, as appropriate, such as Article 12
(Royalties and Fees for Included Services) or Article 15 (Independent Personal Services). For
example, if an entertainer receives royalty income from the sale of recordings of a concert given
in a State, the royalty income would be subject to the provisions of Article 12. Thus, the royalty
income would be subject to a gross basis withholding tax by the source State (provided the
royalties are not attributable to a fixed base of the entertainer in that State), even if the
remuneration from the concert itself may have been covered by Article 18.
Paragraph 2 is intended to deal with the potential for abuse when income from a
performance by an entertainer or athlete does not accrue to the performer himself, but to another
person. Foreign entertainers commonly perform in the United States as employees of, or under
contract with, a company or other person. The relationship may truly be one of employee and
employer, with no abuse of the tax system either intended or realized. On the other hand, the
"employer" may, for example, be a company established and owned by the performer, which is
merely acting as the nominal income recipient in respect of the remuneration for the entertainer's
performance. The entertainer may be acting as an "employee", receiving a modest salary, and
arranging to receive the remainder of the income from his performance in another form or at a
later time. In such case, absent the provisions of paragraph 2, the company providing the
entertainers services can escape host country tax because it earns business profits but has no
permanent establishment in that country. The entertainer may largely or entirely escape host
country tax by receiving only a small salary in the year the services are performed, perhaps small
enough to place him below the dollar threshold in paragraph 1. He would arrange to receive
further payments in a later year, when he is not subject to host country tax, perhaps as salary
payments, dividends or liquidating distributions.
Paragraph 2 seeks to prevent this type of abuse while at the same time protecting the
taxpayers' rights to the benefits of the Convention when there is a legitimate employee-employer
relationship between the performer and the person providing his services. Under paragraph 2,
when the income accrues to a person other than the performer, and the performer (or persons