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International Co-Operation (Tax Information) Act 2009 (Poland) Notice 2013


Published: 2013-02-14

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I ASSENT International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025
Subsidiary Legislation made under s. 3(6).

INTERNATIONAL CO-OPERATION (TAX
INFORMATION) ACT 2009 (POLAND) NOTICE 2013

(LN. 2013/024)
Commencement 14.2.2013


Amending
enactments
Relevant current
provisions
Commencement
date
None



EU Legislation/International Agreements involved:

______________________


In accordance with the provisions of section 3(6) of the International Co-
operation (Tax Information) Act 2009 I have issued the following Notice.

Title.

1. This Notice may be cited as the International Co-operation (Tax
Information) Act 2009 (Poland) Notice 2013.

Text of Agreement.

2. Pursuant to section 3(6) of the International Co-operation (Tax
Information) Act 2009 the text of an agreement entered into between the
Government of the Republic of Poland and the Government of Gibraltar is
hereby reproduced−
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025

AGREEMENT BETWEEN GIBRALTAR

AND

THE REPUBLIC OF POLAND FOR THE EXCHANGE OF
INFORMATION RELATING TO TAX MATTERS

WHEREAS Gibraltar and Poland (the “Parties”) recognise that present
legislation already provides for cooperation and the exchange of information
in criminal tax matters;

WHEREAS the Parties have long been active in international efforts in the
fight against financial and other crimes, including the targeting of terrorist
financing;

WHEREAS it is acknowledged that Gibraltar under the Terms of its
Entrustment from the United Kingdom has the right to negotiate, conclude,
perform and, subject to the terms of this Agreement, terminate a Tax
Information Exchange Agreement with Poland;

WHEREAS Gibraltar on 27 February 2002 entered into a political
commitment to the OECD’s principles of effective exchange of information
relating to taxes;

WHEREAS the Parties wish to enhance and facilitate the terms and
conditions governing the exchange of information relating to taxes;

NOW, THEREFORE, the Parties have agreed to conclude the following
Agreement which contains obligations on the part of Gibraltar and Poland
only:
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025 Article 1
Object and Scope of the Agreement

The competent authorities of the Contracting Parties shall provide assistance
through exchange of information that is foreseeably relevant to the
administration and enforcement of the domestic laws of the Contracting
Parties concerning taxes covered by this Agreement, including information
that is foreseeably relevant to the determination, assessment and collection of
tax with respect to persons subject to such taxes, the recovery and
enforcement of tax claims, or the investigation of tax matters or prosecution
of criminal tax matters in relation to such persons. Information shall be
exchanged in accordance with the provisions of this Agreement and shall be
treated as confidential in the manner provided in Article 8. The rights and
safeguards secured to persons by the laws or administrative practice of the
requested Party remain applicable to the extent that they do not unduly
prevent or delay effective exchange of information.

Article 2
Jurisdiction

A requested Party is not obligated to provide information which is neither
held by its authorities nor in the possession or control of persons who are
within its territorial jurisdiction.

Article 3
Taxes Covered

1. This Agreement shall apply to the following taxes imposed by the
Contracting Parties:

(a) in the case of Poland:

(i) the personal income tax;

(ii) the corporate income tax;

(b) in the case of Gibraltar:

taxes of every kind and description.

2. This Agreement shall also apply to any identical taxes imposed after the
date of signature of the Agreement in addition to, or in place of, the existing
taxes. This Agreement shall also apply to any substantially similar taxes
imposed after the date of signature of the Agreement in addition to, or in
place of, the existing taxes if the competent authorities of the Contracting
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025 Parties so agree. The competent authorities of the Contracting Parties shall
notify each other of any substantial changes in their laws which may effect
the obligations of that Contracting Party pursuant to this Agreement.

Article 4
Definitions

1. In this Agreement:

(a) the term “Poland” means the Republic of Poland and, when
used in a geographical sense, means the territory of the
Republic of Poland, and any area adjacent to the territorial
waters of the Republic of Poland within which, under the laws
of Poland and in accordance with international law, the rights of
Poland with respect to the exploration and exploitation of the
natural resources of the seabed and its sub-soil may be
exercised;

(b) the term “Gibraltar” means the territory of Gibraltar;

(c) the term “Contracting Party” means Poland or Gibraltar, as the
context requires;

(d) the term “competent authority” means:

(i) in the case of Poland, the Minister of Finance or his
authorized representative;

(ii) in the case of Gibraltar, the Minister of Finance or his
authorised representative;

(e) the term “person” includes an individual, a company and any
other body of persons;

(f) the term “company” means any body corporate or any entity
that is treated as a body corporate for tax purposes;

(g) the term “publicly traded company” means any company whose
principal class of shares is listed on a recognized stock
exchange provided its listed shares can be readily purchased or
sold by the public. Shares can be purchased or sold “by the
public” if the purchase or sale of shares is not implicitly or
explicitly restricted to a limited group of investors;

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025 (h) the term “principal class of shares” means the class or classes of
shares representing a majority of the voting power and value of
the company;

(i) the term “recognized stock exchange” means any stock
exchange agreed upon by the competent authorities of the
Contracting Parties;

(j) the term “collective investment fund or scheme” means any
pooled investment vehicle, irrespective of legal form. The term
“public collective investment fund or scheme” means any
collective investment fund or scheme provided the units, shares
or other interests are not implicitly or explicitly restricted to a
limited group of investors;

(k) the term “tax” means any tax to which the Agreement applies;

(l) the term “applicant Party” means the Contracting Party
requesting information;

(m) the term “requested Party” means the Contracting Party
requested to provide information;

(n) the term “information gathering measures” means laws and
administrative or judicial procedures that enable a Contracting
Party to obtain and provide the requested information;

(o) the term “information” means any fact, statement or record in
any form whatever;

(p) the term “criminal tax matters” means tax matters involving
intentional conduct, whether before or after the entry into force
of this Agreement, which is liable to prosecution under the
criminal laws of the applicant Party, and includes fraud and
wilful default;

(r) the term “criminal laws” means all criminal laws designated as
such under domestic law irrespective of whether such are
contained in the tax laws, the criminal code or other statutes.

2. As regards the application of this Agreement at any time by a Contracting
Party, any term not defined therein shall, unless the context otherwise
requires, have the meaning that it has at that time under the law of that Party,
any meaning under the applicable tax laws of that Party prevailing over a
meaning given to the term under other laws of that Party.
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025
Article 5
Exchange of Information Upon Request

1. The competent authority of the requested Party shall provide upon request
by the competent authority of the applicant Party information for the
purposes referred to in Article 1. Such information shall be exchanged
without regard to whether the conduct being investigated would constitute a
crime under the laws of the requested Party if it had occurred in the territory
of the requested Party.

2. If the information in the possession of the competent authority of the
requested Party is not sufficient to enable it to comply with the request for
information, that Party shall use all relevant information gathering measures
to provide the competent authority of the applicant Party with the
information requested, notwithstanding that the requested Party may not
need such information for its own tax purposes.

3. If specifically requested by the competent authority of the applicant Party,
the competent authority of the requested Party shall provide information
under this Article, to the extent allowable under its domestic laws, in the
form of depositions of witnesses and authenticated copies of original records.

4. Each Contracting Party shall ensure that its competent authorities for the
purposes specified in Article 1 of the Agreement, have the authority to obtain
and provide upon request:

(a) information held by banks, other financial institutions, and any
person, including nominees and trustees, acting in an agency or
fiduciary capacity;

(b) information regarding the legal and beneficial ownership of
companies, partnerships, collective investment schemes, trusts,
foundations and other persons, including information on all such
persons in an ownership chain, in particular:
(i) in the case of public collective investment fund or
schemes, information on shares, units and other interests;

(ii) in the case of foundations, information on founders,
members of the foundation council and beneficiaries;

(iii) in the case of trusts, information on settlors, trustees,
protectors and beneficiaries;

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025 this Agreement does not create an obligation on the Contracting Parties to
obtain or provide ownership information with respect to publicly traded
companies or public collective investment funds or schemes unless such
information can be obtained without giving rise to disproportionate
difficulties.

5. Any request for information shall be formulated with the greatest possible
detail and shall specify in writing:

(a) the identity of the person under examination or investigation;

(b) the period for which the information is requested;

(c) the nature of the information requested;

(d) the tax purpose for which the information is sought;

(e) grounds for believing that the information requested is held in
the requested Party or is in the possession or control of a
person within the jurisdiction of the requested Party;

(f) to the extent known, the name and address of any person
believed to be in possession of the requested information;

(g) a statement that the request is in conformity with the law and
administrative practices of the applicant Party, that if the
requested information was within the jurisdiction of the
applicant Party then the competent authority of the applicant
Party would be able to obtain the information under the laws of
the applicant Party or in the normal course of administrative
practice and that it is in conformity with this Agreement;

(h) a statement that the applicant Party has pursued all means
available in its own territory to obtain the information, except
those that would give rise to disproportionate difficulties.

6. The competent authority of the requested Party shall forward the
requested information as soon as is reasonably possible to the applicant
Party. To ensure a prompt response, the competent authority of the
requested Party shall:

(a) confirm receipt of the request in writing to the competent
authority of the applicant Party and shall notify the competent
authority of the applicant Party of any deficiencies in the
request within 60 days of receipt of the request, and
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025
(b) if the competent authority of the requested Party has been
unable to obtain and provide the information within 120 days of
receipt of the request, including if it encounters obstacles in
furnishing the information or it refuses to furnish the
information, it shall immediately inform the applicant Party,
explaining the reason for its inability, the nature of the obstacles
or the reasons for its refusal.

Article 6
Tax Examinations Abroad

1. With reasonable notice the applicant Party may request that the requested
Party allow representatives of the competent authority of the applicant Party
to enter the territory of the requested Party, to the extent permitted under its
domestic laws, to interview individuals and examine records. The competent
authority of the applicant Party shall notify the competent authority of the
requested Party of the time and place of the meeting with the individuals
concerned.

2. At the request of the competent authority of the applicant Party, the
competent authority of the requested Party may allow representatives of the
competent authority of the applicant Party to be present at the appropriate
part of a tax examination in the territory of the requested Party.

3. If the request referred to in paragraph 2 is granted, the competent
authority of the requested Party conducting the examination shall, as soon as
possible, notify the competent authority of the applicant Party of the time
and place of the examination, the authority or person authorized to carry out
the examination and the procedures and conditions required by the requested
Party for the conduct of the examination. All decisions regarding the conduct
of the tax examination shall be made by the requested Party conducting the
examination.

Article 7
Possibility of Declining a Request

1. The competent authority of the requested Party may decline to assist,
where:

(a) the request is not made in conformity with this Agreement;

(b) the applicant Party has not pursued all means available in its
own territory to obtain the information, except where recourse
to such means would give rise to disproportionate difficulty;
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025
(c) the disclosure of the information requested would be contrary
to public policy (ordre public).

2. This Agreement shall not impose on a requested Party any obligation to
provide items subject to legal privilege, or information which would disclose
any trade, business, industrial, commercial or professional secret or trade
process, provided that information described in Article 5 (4) shall not by
reason of that fact alone be treated as such a secret or trade process.

3. In no case shall the provisions of this Agreement be construed so as to
impose on a Contracting Party the obligation to supply information which is
not obtainable under the laws or in the normal course of the administration of
the other Contracting Party.

4. A request for information shall not be refused on the ground that the tax
claim giving rise to the request is disputed.

5. The requested Party may decline a request for information if the
information is requested by the applicant Party to administer or enforce a
provision of the tax law of the applicant Party, or any requirement connected
therewith, which discriminates against a national or citizen of the requested
Party as compared with a national or citizen of the applicant Party in the
same circumstances.


Article 8
Confidentiality

1. Any information provided and received by the competent authorities of
the Contracting Parties shall be kept confidential.

2. The information may be disclosed only to persons or authorities
(including courts and administrative bodies) in the jurisdiction of the
Contracting Party concerned with the assessment or collection of, the
enforcement or prosecution of, or the determination of appeals in relation to
the taxes covered by this Agreement. For these purposes, information may be
disclosed in public court proceedings or in judicial decisions.

3. Information may not be used for any purpose other than for the purposes
stated in Article 1 without the express written consent of the competent
authority of the requested Party.

4. The information provided to the applicant Party under this Agreement
may not be disclosed to any other jurisdiction.
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025
Article 9
Costs

Unless the competent authorities of the Parties otherwise agree, ordinary
costs incurred in providing assistance shall be borne by the requested Party,
and extraordinary costs in providing assistance (including costs of engaging
external advisers in connection with litigation or otherwise) shall be borne by
the applicant Party. The respective competent authorities shall consult
periodically with regard to this Article, and in particular the competent
authority of the requested Party shall consult with the competent authority of
the applicant Party if the costs of providing information with respect to a
specific request are expected to be significant.

Article 10
Mutual Agreement Procedure

1. Where difficulties or doubts arise between the Contracting Parties
regarding the implementation or interpretation of the Agreement, the
respective competent authorities shall use their best efforts to resolve the
matter by mutual agreement.

2. In addition to the agreements referred to in paragraph 1, the competent
authorities of the Contracting Parties may mutually agree on the procedures
to be used under Articles 5, 6, and 7.

3. The Contracting Parties shall endeavour to agree on other forms of
dispute resolution should this become necessary.

4. Formal communications, including requests for information, made in
connection with or pursuant to the provision of this Agreement will be in
writing directly to the competent authority of the other Contracting Party at
such address as may be notified by one Contracting Party to the other. Any
subsequent communications regarding requests for information will be either
in writing or verbally, whichever is most practical, between the
aforementioned competent authorities or their authorized representatives.

Article 11
Entry into Force

Each of the Contracting Parties shall notify directly in writing to the other
the completion of the procedures required by its law for the bringing into
force of this Agreement.

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025 This Agreement shall enter into force on the date of the later of these
notifications and shall have effect:

(a) for criminal tax matters, on that date; and

(b) for all other matters covered in Article 1, on that date, but only
in respect of taxable periods beginning on or after that date or,
where there is no taxable period, all charges arising on or after
that date.

Article 12
Termination

1. This Agreement shall remain in force until terminated by one of the
Contracting Party.

2. Either Contracting Party may terminate the Agreement by giving written
notice of termination. Such termination shall become effective on the first
day of the month following the expiration of a period of three months after
the date of receipt of the notice by the other Contracting Party. All request
received up to effective date of termination will be dealt with in accordance
with the terms of this Agreement.

3. If the Agreement is terminated the Contracting Parties shall remain bound
by the provisions of Article 8 with respect to any information obtained under
the Agreement.

In witness whereof the undersigned, duly authorised thereto by their
Contracting Party, have signed the Agreement.


Done in duplicate at London this 31st day of January 2013, in the English
and Polish languages, all two texts being equally authentic.


For Gibraltar: For the Republic of Poland:




Gilbert Licudi QC Witold Sobków
Minister with responsibility Ambassador
for Financial Services
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (POLAND) NOTICE 2013

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2013/025

PROTOCOL TO THE AGREEMENT

BETWEEN
GIBRALTAR
AND
THE REPUBLIC OF POLAND
FOR THE EXCHANGE OF INFORMATION RELATING TO TAX
MATTERS


With respect to Article 11 of the Agreement, it is understood that the term
“criminal tax matters” includes all cases where a person has been notified
that administrative proceedings concerning fraud or wilful default have been
initiated against that person.

In witness whereof the undersigned, duly authorised thereto by their
Contracting Party, have signed the Protocol.



Done in duplicate at London this 31 st day of January 2013, in the English and
Polish languages, all two texts being equally authentic.



For Gibraltar: For the Republic of Poland:
Gilbert Licudi QC Witold Sobków
Minister with responsibility Ambassador
for Financial Services