Posted the: 2015-03-03 Numac: 2011015098 FEDERAL PUBLIC SERVICE Foreign Affairs, trade outside and COOPERATION to development 19 August 2011. -Law approving the agreement, done at Brussels on October 23, 2009, between the Government of the Kingdom of Belgium and the Government of the Principality of Andorra for the exchange of information in tax matters (1) (2) (3) ALBERT II, King of the Belgians, to all, present and future, hi.
The Chambers have adopted and we endorse the following: Article 1.
This Act regulates a matter referred to in article 77 of the Constitution.
S. 2. the agreement, done at Brussels on October 23, 2009, between the Government of the Kingdom of Belgium and the BC Government of the Principality of Andorra for the exchange of information in tax matters, will release its full and complete effect.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given in Brussels, August 19, 2011.
ALBERT by the King: the Deputy Prime Minister and Minister for Foreign Affairs, S. VANACKERE.
The Deputy Prime Minister and Minister of finance, D. REYNDERS sealed with the seal of the State: the Minister of Justice, S. DE CLERCK _ Notes (1) Session 2010-2011.
Bill filed April 20, 2011, no. 5 - 969/1.
Report on behalf of the Committee, no 5-969/3.
Text adopted by the Committee 5-969/4.
Discussion, session of June 9, 2011.
Vote, meeting of June 9, 2011.
Draft transmitted by the Senate, no. 53-1582/1.
Text adopted in plenary meeting and submitted to the Royal assent, no. 53-1582/2.
Discussion, July 7, 2011 meeting.
Vote, July 7, 2011 meeting.
(2) see the Decree of the Flemish Community / Flemish region June 7, 2013 (Moniteur belge of 4 July 2013 - Ed 1), the Decree of the French community of December 4, 2014 (Moniteur belge of 30 December 2014 - Ed 1), Decree of the German-speaking community for September 17, 2013 (Moniteur belge of 9 October 2013 - Ed 1), the Decree of the Walloon Region from 26 April 2012 (Moniteur belge of 22 may 2012 - Ed 1) and order of the Brussels-Capital Region from 11 July 2013 (Moniteur belge of 23 July 2013 - Ed. 1).
(3) entry into force: 13 January 2015.
Agreement between the Government of the Kingdom of Belgium and the Government of the Principality of Andorra for the exchange of information in tax matters the Government of Kingdom of Belgium and the Government of the Principality of Andorra, wishing to facilitate the exchange of information in tax matters, have agreed upon the following provisions: Article 1 object and scope of the agreement the Parties shall, through their competent authorities to grant assistance by the exchange of information likely to be relevant to the administration or enforcement of the internal legislation of the Parties concerning taxes covered by this agreement, including the likely relevant information for the determination the establishment, enforcement or collection of tax in relation to persons subject to these taxes or for investigations or prosecutions in tax matters relating to these people. Information is exchanged in accordance with the provisions of this agreement and as confidential treaties as laid down in article 8.
Article 2 jurisdiction a requested Party has no obligation to provide information which are not held by its authorities or in the possession of persons within its territorial jurisdiction, or which can be obtained by persons within its territorial jurisdiction.
Article 3 taxes covered 1. This agreement shall apply to the following taxes imposed by or on behalf of the Parties: has) with regard to Andorra, the tax on real estate transfers of assets, the tax on the capital gain from real estate transfers of assets and the existing direct taxes imposed by the laws;
(b) as regards Belgium, (i) the tax of natural persons;
(ii) the corporation tax;
(iii) the income tax of legal persons;
(iv) the non-resident tax;
(v) the value added tax.
2 this Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this agreement and additional to existing taxes or place if the Parties through their competent authorities agree.
The competent authority of each Party shall notify the other any substantial change in its legislation likely to affect the obligations of this part resulting from this agreement.
3. with regard to taxes collected in Belgium by political subdivisions and local authorities or on behalf of such subdivisions or communities, the present agreement will be applicable only from the date on which the Belgium notified in Andorra through diplomatic channels its consent to the application of this provision.
Article 4 Definitions 1. In this agreement: a) «Andorra» means the Principality of Andorra, used in a geographical sense, the term means the territory of the Principality of Andorra, including any space on which, in accordance with international law, the Principality of Andorra exercises sovereign rights or jurisdiction;
(b) "Belgium" means the Kingdom of Belgium; used in a geographical sense, means the territory of the Kingdom of Belgium, including the territorial sea and maritime zones and the air space over which, in accordance with international law, the Kingdom of Belgium has sovereign rights or jurisdiction;
(c) ' Fund or collective investment device' means any instrument of Group investment, regardless of its legal form;
(d) «Fund or public collective investment device» means any fund or collective investment in which device the purchase, sale or redemption of the 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 which is treated as a body corporate for tax purposes;
(f) ' competent authority' means (i) with regard to Andorra, the Minister responsible for finance or his authorized delegate;
(ii) in relation to the Belgium, the Minister of finance or his authorized delegate;
(g) "criminal law" means any criminal provision qualified as such in right internal, contained in the tax legislation, the criminal law or other laws;
(h) ' in criminal tax matters"means tax matters involving an intentional act which is liable to prosecution under the criminal law of the requesting party;
(i) "information" means any fact, statement or document, regardless of the form.
(j) "information gathering measures" means laws and regulatory provisions 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 group or group of people;
(l) "principal class of shares" means the classes of shares representing a majority of the voting rights and of the value of the company;
(m) "company" means any company whose principal class of shares is listed on a recognized stock exchange, listed shares of the company to be able to be easily bought or sold by the public. The shares can be bought or sold "by the public" If the purchase or the sale of the shares is not implicitly or explicitly restricted to a limited group of investors;
(n) "recognized stock exchange" means any stock exchange determined by mutual agreement by the competent authorities of the Parties;
(o) "requested Party" means the party to this agreement to which information is requested or which has provided information in response to a request;
(p) "requesting party" means the party to this agreement submitting a request for information or who has received information from the requested Party;
(q) "tax" means any tax covered by this agreement.
2. for the purposes of this agreement at any time by a party, any term or any term which is not defined is, unless the context otherwise requires, meaning that assigns, at this time, the law of that party, the meaning given to this term or expression by the tax law of that party prevailing on the meaning attributed 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 provide, at the request of the applicant, the information for the purposes referred to in article 1. These information are exchanged, regardless of whether the requested Party is whether or not to need for its own tax purposes and that the Act the subject of the investigation is a criminal offence under the law of the requested party if it had occurred on the territory of that party. The competent authority of the requesting party makes a request for information under this section when it is not able to obtain the information by other means, except when these other means would give rise to disproportionate difficulties.
2. If the information in the possession of the competent authority of the requested Party is not sufficient for him to allow to respond to the request for information.
the requested party takes all appropriate information gathering measures to provide to the applicant the information requested, even if the requested Party has no need of such information for its own tax purposes.
3. on request of the competent authority of the requesting party, the competent authority of the requested Party provides the information referred to in this article, insofar as its law permits, in the form of depositions of witnesses and certified copies of original documents.
4. Notwithstanding any contrary provision of its internal law, each Party shall have the power, 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 concerning the property of corporations, partnerships, investment funds, trusts, foundations and others-devices including information concerning all these people when they are part of a string of property, and (i) in what concerns the collective investment devices, information on stocks, shares and other equity;
(ii) in relation to trusts (trusts), information on the constituents (settlors), Trustees (trustees), protectors and beneficiaries;
(iii) with regard to foundations, information on the founders, the members of the Board of the Foundation and beneficiaries; and (iv) in relation to persons who are neither devices of collective investment nor trusts or foundations, equivalent information to the information mentioned in sub-paragraphs (i) to (iii).
5. any request for information is formulated in the detailed manner as possible and accurate writing: has) the identity of the person being the object of a control or an 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 them;
d) the tax purpose in which the information is requested;
e) giving reasons to think that the requested information is likely relevant to the administration or enforcement of tax of the applicant referred to in article 3 in relation to a person identified in subparagraph (a) of this paragraph;
(f) the reasons suggesting that the information requested is held 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) insofar as they are known, the name and address of any person who he has reason to believe that it is in possession of the requested information, or that it is able to obtain them;
(h) a statement that the application is consistent with this agreement;
(i) a statement that the requesting party has used to get information all means available in its own territory, except those that would give rise to disproportionate difficulties.
6. the competent authority of the requested party acknowledges receipt of the application to the competent authority of the requesting party, shall inform him of any delay unexpected in the collection of the requested information and strives to provide the information requested in the requesting party within the shortest possible time.
Article 6 fiscal controls abroad 1. The competent authority of the requesting party may request that the competent authority of the requested Party allow representatives of the competent authority of the requesting party to enter the territory of the requested party to interview individuals and examine documents, with the prior written consent of individuals, or other relevant persons. The competent authority of the requesting party informed the competent authority of the requested Party the date and place of the meeting with concerned individuals.
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 audit on 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 leads the control made known as soon as possible, the competent authority of the requesting party the date and location of the control, the authority or the person authorized to conduct the inspection and the procedures and conditions required by the part required for the conduct of the control. Any decision relating to the conduct of fiscal control is taken by the requested Party which leads the control.
4. guidelines for the presence on the territory of a party of tax officials of either party are listed in Annex I. Article 7 possibility of declining 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 exhausted all the means at its disposal to get the information on its own territory, except where recourse to such means would give rise to disproportionate; difficulties or c) when disclosure of the information would be contrary to public order.
2. the present agreement does not oblige a party required to provide information that would reveal a trade secret, industrial or professional or trade process. Notwithstanding the foregoing, information of the kind referred to in article 5, paragraph 4, will not be treated as such a secret or trade process from the simple fact that they fulfil the criteria laid down in this paragraph.
3. a request for information may be refused on the ground that the tax claim that the subject of the application is disputed.
4. the requested Party may deny a request for information if the information is requested by the applicant to apply or enforce a provision of the tax legislation of the requesting party, or any obligation thereto, which is discriminatory against a citizen of the requested party to a citizen of the requesting party in the same circumstances.
Article 8 confidentiality any information received by a party under this agreement is kept confidential and may be disclosed only to persons or authorities (including courts and administrative bodies) within the jurisdiction of that party who are concerned by the establishment, collection, recovery or enforcement of the taxes covered by this agreement, or by the prosecution or appeal decisions relating to these taxes. These persons or authorities may use this information for these purposes only. They can be reported at public hearings in courts or in judicial decisions. The information may be disclosed to any other person, entity or authority or any other foreign authority without written permission express of the competent authority of the requested Party.
Article 9 costs unless the competent authorities has Parties agree otherwise, the indirect costs incurred in providing assistance shall be borne by the requested Party, and the direct costs incurred in providing assistance (including costs resulting from recourse to external as part of litigation or other purposes consultants) are borne by the requesting party. The competent authorities shall periodically consult about this article; in particular, the competent authority of the requested Party agreed in advance with the competent authority of the requesting party if it is expected that the provision of information concerning a specific request gives rise to significant costs.
Article 10 mutual agreement Procedure 1. In case of difficulties or doubts 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 the agreements referred to in paragraph 1, the competent authorities of the Parties may determine by mutual agreement procedures in application of articles 5, 6 and 9.
3. the competent authorities of the Parties may communicate with each other directly in order to achieve an agreement pursuant to this section.
Article 11 entry into force each Party shall notify to the other the completion of the procedures required by its law for the entry into force of this agreement. This agreement shall enter into force on the date of the latter of these notifications and shall take effect: a) in criminal tax matters on that date; and (b) for all other matters referred to in article 1, with respect to the taxable periods commencing from 1 January of the year next following that of the entry into force of the agreement or, in the absence of taxable period, in what respect taxes due in respect of taxable events occurring from 1 January of the year next following that of the entry into force of the agreement.
Article 12 denunciation 1.
Each of the Parties may denounce this agreement by notifying the notification in writing.
2. Such denunciation shall take effect on the first day of the month following the expiration of a period of three months
from the date of receipt by the other party of the notification of denunciation. All applications received up to the effective date of denunciation will be treated in accordance with the terms of this agreement.
3. the party which denounces the agreement remains bound by the provisions of article 8 to all information obtained pursuant to this agreement.
In witness whereof the undersigned, being duly authorized by their respective Governments, have signed this agreement.
Done at Brussels, 23 October 2009, in double copy, in French, Dutch and Catalan languages all texts being equally authentic. The French text shall prevail in the event of divergence between the texts.
Appendix I guidelines for the presence on the territory of a party of tax officials of either party subject to the following provisions, officials of the tax administration of a party may be present on the territory of the other party to gather any information useful for the determination of the income tax and tax on the added value of a party or both Parties.
A. General a request to authorize the presence of tax officials of a party during a survey carried out in the territory of the other party is introduced in special cases. These include: a. cases which present evidence of irregularities or cross-border fraud on a large scale in one of the two or both Parties;
b. cases whose complexity makes the presence of these officials desirable;
c. case whose prescription is close, and the presence of these officials can expedite the investigation.
d. investigations in common in the context of bilateral or multilateral controls.
The competent authorities may authorise 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.
Based on reciprocity, a Party permits, in similar cases, the presence on its territory of tax officials of the other party.
B. Conditions of presentation of an application the application of tax officials of a party in the territory of the other party is motivated, in writing and seeks a specific investigation. She noted the steps taken by the applicant to obtain the desired information. The competent authority of the requested Party shall take a decision no later than within three months from the date of receipt of the application. In an emergency, duly motivated decision is taken within one month.
If the request is accepted, the competent authority of the requested Party shall inform, as soon as possible, the competent authority of the applicant of the date and place of the inquiry as well as the identity of the authority or the tax officer assigned to conduct the investigation.
V. conduct of fiscal control the investigation is carried out by tax officials of the requested Party. Officials visitors are allowed to be present during the survey parties which may be of interest to the investigation of the applicant. Officials visitors comply with the legislation of the requested Party.
At their request, officials visitors have access to books, documents, papers, and other data and sensitive information that may be of interest in the investigation.
Subject to the provisions of the legislation of the party in the territory of which investigation takes place, officials visitors get, upon request, copies or photocopies of the data and information mentioned above.
The applicant cannot use the data and information gathered through the survey conducted in the other party until they have been communicated through the competent authorities.
D. Identification officials tax of a party whose presence is expected on the territory of the other party, are specifically designated in writing and shall be provided with an official authorization which shows that they are acting on behalf of the first part. In all cases, the officials must be able to prove their quality by means of a commission or other proof of identity provided by the service to which they belong.
Protocol to the agreement between the Government of the Kingdom of Belgium and the Government of the Principality of Andorra for the exchange of information in tax matters, the Parties agree that the following provisions form an integral part of the agreement: "the Kingdom of Belgium and the Principality of Andorra confirmed their good predisposition to negotiate a convention to avoid double taxation as soon as the legislative framework in tax matters of the Principality will be defined. This agreement will specify the administrative procedure for the exchange of information in tax matters and will override this agreement. Negotiation opens in the year following the adoption by the andorran Parliament of a law on the introduction in the Principality of Andorra of the corporate profits tax. "In witness whereof, the undersigned, duly authorised to that effect by the Parties, have signed this Protocol.
Done at Brussels, 23 October 2009, in double copy, in French, Dutch and Catalan languages all texts being equally authentic. The French text shall prevail in the event of divergence between the texts.