belgiquelex.be - Carrefour Bank of Legislation 28 FEBRUARY 2014. - An Act to approve the Agreement between the Government of the Kingdom of Belgium and the Government of Montserrat, as mandated by the Government of the United Kingdom of Great Britain and Northern Ireland, for the exchange of tax information, made in London on 16 February 2010 (1) (2) (3)
PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1
er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Agreement between the Government of the Kingdom of Belgium and the Government of Montserrat, as mandated by the Government of the United Kingdom of Great Britain and Northern Ireland, with a view to the exchange of information in tax matters, was made in London on 16 February 2010 and will be fully effective.
Promulgate this Act, order that it be put on the State Seal and published by the Belgian Monitor.
Given in Brussels on 28 February 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
Minister of Finance,
K. GEENS
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) Senate (www.senate.be): Documents: 5-2257 - Annales du Senate: 07/11/2013
House of Representatives (www.lachambre.be): Documents: 53-3122 - Full report: 19/12/2013
(2) See the Decree of the Flemish Community/ Flemish Region of 7 June 2013 (Belgian Monitor of 3 July 2013), the Decree of the French Community of 25 June 2015 (Belgian Monitor of 15 July 2015), the Decree of the German-speaking Community of 17 September 2013 (Belgian Monitor of 9 October 2013), the Decree of the Walloon Region of 12 March 2015 (Belgian Monitor of 24 March 2015) and
(3) Entry into force: 18/11/2015 (according to article 14).
Agreement between the Government of the Kingdom of Belgium and the Government of Montserrat as mandated by the Government of the United Kingdom of Great Britain and Northern Ireland for the exchange of tax information
THE GOVERNMENT OF THE BELGIUM ROYAUME
AND
THE GOVERNMENT OF MONTSERRAT
Authorized by the Government of the United Kingdom of Great Britain and Northern Ireland
CONSIDERING that the Government of Montserrat and the Government of Belgium ("the Parties") recognize that Montserrat's current legislation already provides for the cooperation and exchange of information in criminal tax matters;
CONSIDERING that Montserrat, according to the terms of the Entrustment received from the United Kingdom, has the right to negotiate, conclude and execute a tax information exchange agreement with Belgium;
CONSIDERING that the Government of Belgium welcomes the conclusion of this Agreement with the Government of Montserrat, which represents an important step in the implementation of Montserrat's commitment on 27 February 2002 to the OECD to respect the principles of transparency and exchange of information. The Government of Belgium considers that this Agreement demonstrates Montserrat's commitment to comply with high standards for the effective exchange of information on both criminal and civil tax matters, in accordance with the goals and objectives of the OECD World Tax Forum. The Government of Belgium recognizes that Montserrat is committed to combating tax abuse by establishing mechanisms that enhance transparency;
CONSIDERING that Parties wish to improve and facilitate the terms and conditions governing the exchange of tax information;
IN CONSEQUENCE, Parties agreed to conclude the following Agreement, which includes only obligations for Parties:
Article 1
erPurpose and scope of the Agreement
Parties, through their competent authorities, shall provide assistance through the exchange of information that is likely to be relevant to the administration or application of the domestic legislation of the Parties relating to the taxes covered by this Agreement, including information likely to be relevant to the determination, establishment, application or collection of the tax with respect to persons subject to these taxes or for tax investigations or prosecutions relating to such persons. The information shall be exchanged in accordance with the provisions of this Agreement and shall be treated as confidential in the manner provided for in Article 8.
Article 2
Jurisdiction
The requested Party does not have an obligation to provide information that is not held by its authorities or in the possession of persons under its territorial jurisdiction, or that cannot be obtained by persons under its territorial jurisdiction.
Article 3
Taxes targeted
1. This Agreement applies to the following taxes collected by or on behalf of the Parties:
(a) with respect to Montserrat, direct taxes of any kind or denomination;
(b) with regard to Belgium,
(i) the tax of natural persons;
(ii) corporate tax;
(iii) corporation tax;
(iv) non-resident tax;
(v) value added tax.
2. This Agreement shall also apply to identical or similar taxes that would be established after the date of signature of this Agreement and that would be in addition to or replace the existing taxes, if the Parties, through their competent authorities, agree to that Agreement. The competent authority of each Party shall notify the other of any substantial amendment to its legislation that may affect the obligations of that Party arising from this Agreement. In addition, the taxes may be extended by mutual agreement between the Contracting Parties in the form of an exchange of letters.
Article 4
Definitions
1. In this Agreement:
(a) " Montserrat" means the overseas territory of the United Kingdom of Montserrat;
(b) "Belgium" means the Kingdom of Belgium; used in a geographical sense, this term refers to the territory of the Kingdom of Belgium, including the territorial sea as well as the maritime areas and the airspace on which, in accordance with international law, the Kingdom of Belgium exercises sovereign rights or jurisdiction;
(c) " collective investment funds or arrangements " means any consolidated investment instrument, irrespective of its legal form;
(d) "public collective investment funds or arrangements" means any collective investment funds or arrangements in which the purchase, sale or redemption of shares or other investments is not implicitly or explicitly restricted to a limited group of investors;
(e) "society" means any legal person or entity that is taxed as a legal entity;
(f) "competent authority" means:
(i) with respect to Montserrat, the Comptroller of Inland Revenue, and
(ii) in respect of Belgium, the Minister of Finance or its authorized representative;
(g) "criminal law" means any criminal provision referred to as such in domestic law, which is contained in tax legislation, criminal legislation or other laws;
(h) "in criminal tax matters" means any tax case involving an intentional act, before or after the entry into force of this Agreement, which is liable to prosecution under the penal law of the requesting Party;
(i) "information" means any fact, statement or document, whatever the form;
(j) "information collection measures" means legislative and regulatory provisions as well as administrative or judicial procedures that allow a requested Party to obtain and provide the requested information;
(k) "person" means a natural person, society or any other group or group of persons;
(l) "main class of shares" means the class(s) of shares representing the majority of voting rights and the value of the corporation;
(m) "listed corporation" means any corporation whose main class of shares is listed on a recognized stock exchange, the shares listed in the corporation to be purchased or sold easily by the public. Shares may 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;
(n) "recognized scholarship" means any exchange agreed by the competent authorities of the Parties;
(o) "Required Party" means the Party to this Agreement to which information is requested or who provided information in response to an application;
(p) "Applicant Party" means the Party to this Agreement that submits a request for information or has received information from the requested Party;
(q) "tax" means any tax referred to in this Agreement.
2. For the purposes of this Agreement at a time given by a Party, any term or expression not defined therein, unless the context requires a different interpretation, the meaning assigned to it at that time by the law of that Party, the meaning assigned to that term or expression by the applicable tax law of that Party in respect of the meaning assigned to it by the other branches of the law of that Party.
Article 5
Exchange of information on request
1. The competent authority of the requested Party shall, upon written request of the requesting Party, provide the information for the purposes referred to in Article 1. This information shall be exchanged, whether or not the requested Party needs it for its own tax purposes and whether the act under investigation constitutes a criminal offence under the law of the requested Party if it had occurred in the territory of that Party. The competent authority of the requesting Party shall submit an application for information under this article only where it is not in a position to obtain the information requested by other means, except where the use of such other means would result in disproportionate difficulties.
2. If the information in the possession of the competent authority of the requested Party is not sufficient to enable it to respond to the request for information, the requested Party shall take all appropriate information-gathering measures necessary to provide the requested Party with the information, even if the requested Party does not require that information for its own tax purposes.
3. Upon specific request by the competent authority of the requesting Party, the competent authority of the requested Party shall provide the information referred to in this article, to the extent that its domestic law allows it, in the form of testimony of witnesses and certified copies in accordance with the original documents.
4. Notwithstanding any contrary provision of its domestic legislation, each Party shall have the right, subject to the terms of Articles 1 and 2 of this Agreement, to obtain and provide:
(a) information held by banks, other financial institutions, trusts, foundations and any person acting as an agent or trustee;
(b) information relating to the ownership of companies, partnership companies, collective investment schemes, trusts (trusts), foundations and other persons, including information on all such persons when they are part of a chain of ownership, and
(i) with respect to collective investment arrangements, information on shares, shares and other participations;
(ii) with respect to trusts, grantor information (settlors), trustees, protectors (protectors) and beneficiaries;
(iii) with respect to foundations, information on founders, board members of the foundation and beneficiaries; and
(iv) in respect of persons who are not collective investment schemes, trusts or foundations, information equivalent to the information referred to in subparagraphs (i) to (iii).
In addition, this Agreement does not require Parties to obtain or provide property information relating to listed companies or public pooled funds or devices, unless such information may be obtained without causing disproportionate difficulties.
5. A Contracting Party may request information from the other Party even if that requesting Party could not obtain that information for its own purposes under its law or within the normal framework of its administrative practices if the information requested was within its jurisdiction.
6. Any request for information is made in as detailed as possible and in writing:
(a) the identity of the person under review or investigation;
(b) the period for which the information is requested;
(c) the nature of the information requested and the form in which the requesting Party would prefer to receive it;
(d) the tax purpose in which the information is requested;
(e) the reasons that suggest that the information requested is likely to be relevant to the administration or application of the taxes of the requesting Party referred to in Article 3 with respect to a person identified in subparagraph (a) of this paragraph;
(f) reasons that suggest that the information requested is in the requested Party, or is in the possession of a person within the jurisdiction of that Party, or may be obtained by a person within the jurisdiction of that Party;
(g) to the extent that they are known, the name and address of any person who is deemed to be in possession of the requested information or is in a position to obtain it;
(h) a statement stating that the application complies with this Agreement;
(i) a statement stating that the requesting Party has used to obtain the information all available means in its own territory, other than those that would cause disproportionate difficulties.
7. Notwithstanding the provisions of Article 10 in particular, the competent authority of the requested Party shall transmit to the requesting Party the requested information as quickly as possible. To ensure a quick response:
(a) the competent authority of the requested Party shall acknowledge receipt of the request in writing to the competent authority of the requesting Party and, within 60 days from receipt of the request, notify that authority of any deficiencies in the application; and
(b) if the competent authority of the requested Party has not been able to obtain and provide the information within 90 days of receipt of the request, including in the event that it encounters obstacles to providing the information or refuses to provide the information, it shall immediately inform the requesting Party of the information, the nature of the obstacles encountered or the reasons for its refusal.
Article 6
Foreign tax controls
1. The competent authority of the requesting Party may request that the competent authority of the requested Party authorize representatives of the competent authority of the requesting Party to enter the territory of the requested Party to interrogate physical persons and to examine documents, with the prior written consent of the natural persons or other persons concerned. The competent authority of the requesting Party shall notify the competent authority of the requested Party within a reasonable period of time the date and place of the meeting with the natural persons concerned.
2. At the request of the competent authority of the requesting Party, the competent authority of the requested Party may authorize representatives of the competent authority of the requesting Party to attend a tax check in the territory of the requested Party.
3. If the request referred to in paragraph 2 is accepted, the competent authority of the requested Party that conducts the control shall, as soon as possible, notify the competent authority of the requesting Party of the date and place of the control, the authority or person authorized to conduct the control and the procedures and conditions required by the requested Party for the conduct of the control. Any decision on the conduct of tax control shall be taken by the requested Party that conducts control.
4. The visit of tax officials of a Party to the territory of the other Party shall be conducted in accordance with the guidelines set out in the schedule.
Article 7
Possibility to decline a request
1. The competent authority of the requested Party may refuse assistance:
(a) where the application is not submitted in accordance with this Agreement;
(b) where the requesting Party has not used all available means in its own territory to obtain the information, except where the use of such means would result in disproportionate difficulties; or
(c) where the disclosure of the requested information would be contrary to public order.
2. This Agreement shall not require a Party required to provide information that would disclose a commercial, industrial or commercial secret or a commercial process, provided that the information referred to in Article 5, paragraph 4, will not, for that reason alone, be treated as a commercial secret or process.
3. An application for information may not be denied on the grounds that the tax claim under the application is challenged by the taxpayer.
4. The Requested Party may reject a request for information if the information is requested by the requesting Party to apply or enforce a provision of the tax legislation of the requesting Party, or any obligation related to it, which is discriminatory against a citizen of the requested Party in respect of a citizen of the requesting Party in the same circumstances.
5. The provisions of this Agreement shall not require a Contracting Party to obtain or provide information that would disclose confidential communications between a client and a professional legal adviser when such communications:
(a) the purpose of requesting or providing legal advice, or
(b) are intended to be used in ongoing or envisaged court proceedings;
However, this paragraph does not prevent a lawyer from providing a client's name and address when it does not constitute a breach of confidentiality (legal privilege).
Article 8
Confidentiality
1. Any information received by a Contracting Party under this Agreement shall be held in confidence and shall be disclosed only to persons or authorities (including the courts and administrative bodies) within the jurisdiction of that Contracting Party concerned by the establishment, collection, collection or enforcement of the taxes referred to in this Agreement, or by the prosecution or decisions relating to appeals relating to such taxes. These individuals or authorities may only use this information for these purposes. These may be reported at public court hearings or in court decisions.
2. The information may not be disclosed to any other person, entity or authority or other foreign authority without the express written authorization of the competent authority of the requested Party.
Article 9
Protection
The rights and protections enjoyed by persons under the legislative or regulatory provisions or administrative practices of the requested Party remain applicable. These rights and protections cannot be applied by the requested Party in such a way that they unduly impede or delay an effective exchange of information.
Article 10
Fees
Unless otherwise agreed by the competent authorities of the Parties, the indirect costs incurred to provide assistance shall be borne by the requested Party, and the direct costs incurred to provide assistance (including costs resulting from the use of external advisers in litigation or for other purposes) shall be borne by the requesting Party. The competent authorities shall consult periodically on this article; in particular, the competent authority of the requested Party shall consult in advance with the competent authority of the requesting Party if it expects that the provision of information with respect to a specific request will result in substantial costs.
Article 11
Application provisions
Contracting Parties shall adopt any legislation necessary to comply with this Agreement and give effect to it.
Article 12
Language
Requests for assistance and responses to these requests are in English.
Article 13
Friendly procedure
1. In the event of difficulties or doubts between the Parties regarding the application or interpretation of this Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement.
2. In addition to the agreements referred to in paragraph 1, the competent authorities of the Parties may jointly determine the procedures to be followed in accordance with Articles 5, 6 and 10.
3. The competent authorities of the Parties may communicate with each other directly when seeking an agreement under this Article.
Article 14
Entry into force
1. This Agreement shall enter into force on the thirtieth (30)
e) the day after the later of the dates to which each Party shall notify the other in writing of the completion of the constitutional or other formalities required in their respective Party.
3. Upon entry into force, the provisions of this Agreement shall take effect:
(a) in criminal matters at the date of entry into force;
(b) for all other matters referred to in section 1, on the date of entry into force but only with respect to taxable periods beginning from that date or, in the absence of a taxable period, all taxations arising from that date.
Article 15
Denunciation
1. Each Party may denounce the Agreement by notifying this denunciation in writing.
2. This denunciation takes effect on the first day of the month following the expiration of a period of three months from the date of receipt of the notification of denunciation by the other Party. All applications received up to the effective date of denunciation will be processed in accordance with this Agreement.
3. The Party denouncing the Agreement shall remain bound by the provisions of Article 8 for any information obtained under this Agreement.
IN WITNESS WHEREOF the undersigned, duly authorized by their respective Governments, have signed this Agreement.
DONE in London, February 16, 2010, in duplicate, in the English language.
Annex
GUIDELINES FOR THE FUNCTIONAL PRESENCE OF THE PART ON THE TERRITORY OF THE PART
Subject to the following provisions, officials of the tax administration of a Party may be present in the territory of the other Party in order to collect any information relevant to the determination of income tax and value added tax of a Party or both Parties.
A. General
An application to authorize the presence of tax officials of a Party in a control over the territory of the other Party shall be filed in special cases. These include:
a. cases with significant cross-border irregularities or frauds in either or both Parties;
b. the complexity of which makes the presence of such staff desirable;
c. cases where the statute of limitations is close and for which the presence of such staff may accelerate control;
d. joint controls under bilateral or multilateral controls.
The competent authorities may authorize the presence of tax officials of a Party in the territory of the other Party in other cases than those referred to in point A above.
On the basis of reciprocity, a Party authorizes, in similar cases, the presence in its territory of tax officials of the other Party.
B. Conditions of application
The request for the presence of tax officials of a Party in the territory of the other Party shall be substantiated, made in writing and shall be subject to specific control. It refers to the steps taken by the requesting Party to obtain the requested information. The competent authority of the requested Party shall make a decision no later than three months from the date of receipt of the request. In an emergency, duly motivated, the decision is made in the month.
If the application is accepted, the competent authority of the requested Party shall inform, as soon as possible, the competent authority of the requesting Party of the date and place of control and of the identity of the designated tax authority or official to conduct the control.
C. Tax Control Procedure
The control shall be carried out by tax officials of the requested Party. Visitors are allowed to be present at the parts of the control which may be interesting for the control of the requesting Party. Visitors comply with the required Party legislation.
At their request, visitors have access to the accounts, documents and other data and information materials that may be of interest in the monitoring process.
Subject to the provisions of the Party ' s legislation in the territory of which the control takes place, visitors shall obtain, upon request, copies and/or photocopies of the data and information referred to above.
The requesting Party may not use the data and information collected under the control carried out in the other Party before it has been communicated through the competent authorities.
D. Identification
Tax officials of a Party whose presence is expected in the territory of the other Party are specifically designated in writing and must be provided with an official authorization which it appears that they act on behalf of the first Party. In all cases, public servants must be able to prove their quality through a commission or other evidence of legitimation provided by the service to which they belong.
AGREEMENT BETWEEN THE GOVERNMENT OF THE KINGDOM OF BELGIUM AND THE GOVERNMENT OF MONTSERRAT AS AUTHORISED BY THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ON THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS
THE GOVERNMENT OF THE KINGDOM OF BELGIUM
AND
THE GOVERNMENT OF MONTSERRAT
As authorised by the Government of the United Kingdom of Great Britain
and Northern Ireland
Whereas the Government of Montserrat and the Government of Belgium ("the Parties") recognise that Montserrat's present legislation already provides for cooperation and the exchange of information in criminal tax matters;
Whereas it is acknowledged that Montserrat under the terms of its Entrustment from the United Kingdom has the right to negotiate, conclude and implement a tax information exchange agreement with Belgium;
Whereas the Government of Belgium welcomes the conclusion of this Agreement with the Government of Montserrat, which represents an important step in delivering the commitment Montserrat made to the OECD on the 27th February 2002 to respect the principles of transparency and exchange of information. The Government of Belgium considers that this Agreement demonstrates Montserrat's commitment to high standards for effective exchange of information with respect to both criminal and civil taxation matters, consistent with the aims and objectives of the OCED Global Forum on Taxation. The Government of Belgium recognizes that Montserrat is committed to combating tax abuse by putting in place mechanisms which enhance transparency;
Whereas the Parties wish to enhance and facilitate the terms and conditions governing the exchange of information with respect to taxes;
Now, therefore, the Parties have agreed to conclude the following Agreement, which contains obligations on the part of the Parties only:
Article 1
Object and Scope of the Agreement
The Parties, through their competent authorities, shall provide assistance through exchange of information that is foreseeably relevant to the administration or enforcement of the domestic laws of the Parties concerning taxes covered by this Agreement, including information that is foreseeably relevant to the determination, assessment, enforcement or collection of tax with respect to persons subject to such taxes or to the investigation or prosecution of 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.
Article 2
Jurisdiction
A requested Party is not obliged to provide information which is neither held by its authorities, nor in the possession of, nor obtainable by persons who are within its territorial jurisdiction.
Article 3
Tax Covered
1. This Agreement shall apply to the following taxes imposed by or on behalf of the Parties:
a) in the case of Montserrat, direct taxes of every kind and description.
(b) in the case of Belgium,
(i) the individual income tax;
(ii) the corporate income tax;
(iii) the income tax on legal entities;
(iv) the income tax on non-residents;
(v) the value added tax.
2. This Agreement shall apply also to any identical or substantially similar taxes imposed after the date of signature of this Agreement in addition to or in place of the existing taxes if the Parties, through their competent authorities, so agree. The competent authority of each Party shall notify the other of any substantial changes in laws which may affect the obligations of that Party pursuant to this Agreement. Furthermore, the taxes covered may be expanded by mutual agreement of the Contracting Parties in the form of an exchange of letters.
Article 4
Definitions
1. In this Agreement:
(a) "Montserrat" means the United Kingdom Overseas Territory of Montserrat;
(b) "Belgium" means the Kingdom of Belgium; used in a geographical sense, it means the territory of the Kingdom of Belgium, including the territorial sea and any other area in the sea and in the air within which the Kingdom of Belgium, in accordance with international law, exercises sovereign rights or its jurisdiction;
(c) "collective investment fund or scheme" means any pooled investment vehicle, irrespective of legal form;
(d) "public collective investment fund or scheme" means any collective investment scheme or fund in which the purchase, sale or redemption of shares or other interests is not implicitly or explicitly restricted to a limited group of investors;
e) "company" means any body corporate or any entity that is treated as a body corporate for tax purposes;
(f) "competent authority" means,
(i) in the case of Montserrat, the Comptroller of Inland Revenue and
(ii) in the case of Belgium, the Minister of Finance or his authorised representative;
(g) "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;
h) "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 requesting Party;
(i) "information" means any fact, statement, document or record in whatever form;
(j) "information gathering measures" means laws and administrative or judicial procedures enabling a requested Party to obtain and provide the information requested;
(k) "person" means an individual, a company or any other body or group of persons;
(l) "principal class of shares" means the class or classes of shares representing a majority of the voting power and value of the company;
m) "publicly traded company" means any company whose principal class of shares is listed on a recognised 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;
(n) "recognised stock exchange" means any stock exchange agreed upon by the competent authorities of the Parties;
o) "requested Party" means the Party to this Agreement which is requested to provide information or has provided information in response to a request;
(p) "requesting Party" means the Party to this Agreement submitting a request for or having received information from the requested Party;
q) "tax" means any tax covered by this Agreement.
2. As regards the application of this Agreement at any time by a 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.
Article 5
Exchange of Information Upon Request
1. The competent authority of the requested Party shall provide upon request in writing by the requesting Party information for the purposes referred to in Article 1. Such information shall be exchanged without regard to whether the requested Party needs such information for its own tax purposes or 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. The competent authority of the requesting Party shall only make a request for information pursuant to this Article when it is unable to obtain the requested information by other means, except where recourse to such means would give rise to disproportionate difficulty.
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, the requested Party shall use all appropriate information gathering measures to provide the requesting 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 requesting 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. Notwithstanding any contrary provisions in its domestic laws, each Party shall have the authority, subject to the terms of Articles 1 and 2 of this Agreement, to obtain and to provide:
a) information held by banks, other financial institutions, trusts, foundations and any person, including nominees and trustees, acting in an agency or fiduciary capacity;
b) information regarding the ownership of companies, partnerships, collective investment schemes, trusts, foundations and other persons, including information on all persons in an ownership chain, and
(i) in the case of collective investment schemes, information on shares, units and other interests;
(ii) in the case of trusts, information on settlors, trustees, protectors and beneficiaries;
(iii) in the case of foundations, information on founders, members of the foundation council and beneficiaries; and
(iv) in the case of persons that are neither collective investment schemes, trusts or foundations, equivalent information to the information in subparagraphs (i) to (iii).
Further, this Agreement does not create an obligation on the 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. A Contracting Party may request information from the other Party even if that requesting Party would not be able to obtain such information for its own purposes under its laws or in the normal course of its administrative practice if the requested information was within its jurisdiction.
6. Any request for information shall be formulated with the greatest possible details 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 and the form in which the requesting Party would prefer to receive it;
(d) the tax purpose for which the information is sought;
e) the reasons for believing that the information requested is foreseeably relevant to the administration or enforcement of the taxes of the requesting Party covered under Article 3, with respect to a person identified in subparagraph (a) of this paragraph;
f) grounds for believing that the information requested is present in the requested Party or is in the possession of or obtainable by a person within the jurisdiction of the requested Party;
g) to the extent known, the name and address of any person believed to be in possession of, or able to obtain the requested information;
(h) a statement that the request is in conformity with this Agreement;
i) a statement that the requesting Party has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulty.
7. Notwithstanding the provisions of Article 10 in particular, the competent authority of the Requested Party shall forward the requested information as promptly as possible to the Applicant Party. To ensure a prompt response, the competent authority of the Requested Party shall:
a) confirm receipt of a request in writing to the competent authority of the Applicant Party and shall notify the competent authority of the Applicant Party of deficiencies in the request, if any, within 60 days of the receipt of the request; and
b) if the competent authority of the Requested Party has been unable to obtain and provide the information within 90 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. The competent authority of the requesting Party may request that the competent authority of the requested Party allows representatives of the competent authority of the requesting Party to enter the territory of the requested Party to interview individuals and examine records with the prior written consent of the individuals or other persons concerned. The competent authority of the requesting Party shall give reasonable notice to the competent authority of the requested Party of the time and place of the intended meeting with the individuals concerned.
2. At the request of the competent authority of the requesting Party, the competent authority of the requested Party may allow representatives of the competent authority of the requesting Party to attend 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 requesting Party of the time and place of the examination, the authority or person authorised 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.
4. The presence of tax officials of one Party in the territory of the other Party shall take place in conformity with the provisions of the guidelines contained in the appendix.
Article 7
Possibility of Declining a Request
1. The competent authority of the requested Party may decline to assist :
a) where the request is not made in conformity with this Agreement;
b) where the requesting 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; gold
c) where the disclosure of the information requested would be contrary to public policy.
2. This Agreement shall not impose on a requested Party any obligation to provide 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 a secret or trade process.
3. A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed by the taxpayer.
4. The requested Party may decline a request for information if the information is requested by the requesting Party to administer or enforce a provision of the tax law of the requesting Party, or any requirement connected therewith, which discriminates against a citizen of the requested Party as compared with a citizen of the requesting Party in the same circumstances.
5. The provisions of this Agreement shall not impose on a Contracting Party the obligation to obtain or provide information which would reveal confidential communications between a client and a professional legal advisor where such communications are:
a) produced for the purposes of seeking or providing legal advice; gold
(b) produced for the purposes of use in existing or contemplated legal proceedings;
but this paragraph shall not prevent an attorney, solicitor or barrister from providing the name and address of a client where doing so would not constitute a breach of legal privilege.
Article 8
Confidentiality
1. Any information received by a Contracting Party under this Agreement shall be treated as confidential and 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 in respect of, or the determination of appeals in relation to, the taxes covered by this Agreement. Such persons or authorities shall use such information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. The information may not be disclosed to any other person or entity or authority or any other jurisdiction without the express written consent of the competent authority of the requested Party.
Article 9
Safeguards
The rights and safeguards secured to persons by the laws or administrative practices of the Requested Party remain applicable. The rights and safeguards may not be applied by the Requested Party in a manner that unduly prevents or delays effective exchange of information.
Article 10
Costs
Unless the competent authorities of the Parties otherwise agree, indirect costs incurred in providing assistance shall be borne by the requested Party, and direct costs incurred in providing assistance (including costs of engaging external advisers in connection with litigation or otherwise) shall be borne by the requesting Party. The respective competent authorities shall consult from time to time with regard to this Article, and in particular the competent authority of the requested Party shall consult with the competent authority of the requesting Party in advance if the costs of providing information with respect to a specific request are expected to be significant.
Article 11
Implementing Legislation
The Contracting Parties shall inact any legislation necessary to comply with, and give effect to, the terms of this Agreement.
Article 12
Language
Requests for assistance and responses thereto shall be drawn up in English.
Article 13
Mutual Agreement Procedure
1. Where difficulties or doubts arise between the Parties regarding the implementation or interpretation of this Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement.
2. In addition to the agreements referred to in paragraph 1, the competent authorities of the Parties may mutually agree on the procedures to be used under Articles 5, 6 and 10.
3. The competent authorities of the Parties may communicate with each other directly for purposes of reaching agreement under this Article.
Article 14
Entry into Force
1. This Agreement shall enter into force on the thirtieth (30
th) day after the later of the dates on which each of the Parties has notified the other in writing that the formalities constitutionally or otherwise required in their respective Party have been complied with.
2. Upon entry into force, the provisions of this Agreement shall have effect:
(a) for criminal matters on the date of entry into force;
b) for all other matters covered in Article 1 on the date of entry into force but only in respect of taxable periods beginning on or after that date, where there is no taxable period, all charges arising on or after that date.
Article 15
Termination
1. Either Party may terminate the Agreement by giving a notice of termination in writing.
2. 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 notice of termination by the other Party. All requests received up to the effective date of termination will be dealt with in accordance with the terms of this Agreement.
3. A Party that terminates the Agreement shall remain bound by the provisions of Article 8 with respect to any information obtained under this Agreement.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at London, this February 16, 2010, in the English language.
Appendix
GUIDELINES
FOR THE PRESENCE OF TAX OFFICIALS OF ONE PARTY
IN THE TERRITORY OF THE OTHER PARTY
Subject to the following provisions tax administration officials of one Party may be present on the territory of the other Party in order to obtain any information which is useful for determining the tax on income and the value added tax of one or both Parties.
A. General
A request to allow tax officials of one Party to be present during an examination on the territory of the other Party should be submitted in special cases. This includes in particular:
a. cases in which there are indications of significant cross-border irregularities or fraud in one or both Parties;
b. complex cases which make the presence of the tax officials desirable;
c. cases where there is a risk of the time limit being exceeded, and where the presence of the tax officials can accelerate the examination;
d. common examinations within the framework of bilateral or multilateral examinations.
The competent authorities may allow the presence of tax officials of one Party in the territory of the other Party in cases other than those referred to in 1. above.
On the basis of reciprocity a Party shall in similar cases allow the presence of tax officials of the other Party in its territory.
B. Conditions for submitting a request
The request for the presence of tax officials of a Party in the territory of the other Party shall be well-founded, shall be submitted in writing, and shall concern a particular examination. It shall specify the steps that the requesting party has taken to obtain the required information. The competent authority of the requested Party shall make a decision at the latest within three months counting from the date when the request was received. In urgent cases - which must be well-founded - a decision shall be made within one month.
If the request is granted, the competent authority of the requested Party shall, as soon as possible, notify the competent authority of the requesting Party of the time and place of the examination and of the identity of the authority or tax official designated to carry out the examination.
C. Conducting the examination
The examination shall be carried out by tax officials from the requested Party. The visiting officials shall be authorised to be present during those parts of the examination which may be interesting for the examination of the requesting Party. The visiting officials shall comply with the legislation of the requested Party.
The visiting officials may inspect, upon request, accounts, documents and other data and information carriers which may be interesting within the framework of the examination.
Subject to the legislative provisions of the Party in the territory of which the examination takes place, the visiting officials shall obtain, upon request, a copy and/or photocopy of the above-mentioned data and information.
The requesting Party may not make use of the data and information obtained within the context of the examination which is carried out in the other Party until it has been provided through the competent authorities.
D. Identification
Tax officials of a Party who are to be present in the territory of the other Party shall be specifically designated for that purpose in writing and shall carry an official authorisation certificate showing that they are acting on behalf of the first-mentioned Party. In any case the officials must be able to prove their status by means of a commission certificate or any other attestation issued by the office to which they belong.
