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1661 OF 2013
(July 16)
Official Journal No. 48,853 of 16 July 2013
CONGRESS OF THE REPUBLIC
By means of which the "Convention on Mutual Administrative Assistance in Fiscal Matters", made by the depositaries, is approved on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for Economic Cooperation and Development (OECD).
THE CONGRESS OF THE REPUBLIC
Having regard to the text of the "Convention on Mutual Administrative Assistance in Fiscal Matters", made by the depositaries, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for the Cooperation and Economic Development (OECD).
(To be transcribed: Full and faithful photocopy is attached in Spanish of the Convention certified by the Coordinadora of the Internal Working Group of the Treaties of the Directorate of International Legal Affairs of the Ministry of Relations Exteriors, a document that is based on the files of that Ministry.
BILL NUMBER ...
by means of which the "Convention on Mutual Administrative Assistance in Fiscal Matters", made the depositaries, was adopted on 1 June 2011 and approved by the Council of Europe and the member countries of the Organisation for Economic Cooperation and Development (OECD).
The Congress of the Republic
Having regard to the text of the "Convention on Mutual Administrative Assistance in Fiscal Matters", made by the depositaries, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for Cooperation and Economic Development (OECD).
(To be transcribed: Full and faithful photocopy is attached in Spanish of the Convention certified by the Coordinadora of the Internal Working Group of the Treaties of the Directorate of International Legal Affairs of the Ministry of Relations Exteriors, a document that is based on the files of that Ministry.
CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS
Text updated with the provisions of the protocol amending the Convention on Mutual Administrative Assistance in Fiscal Matters, which entered into force on June 1, 2011.
PREAMBLE
Member States of the Council of Europe and the member countries of the Organization for Economic Cooperation and Development (OECD), signatories to this Convention;
CONSIDERING that the development of the international movement of persons, capital, goods and services-despite being highly beneficial for itself-has increased the chances of circumvention and tax evasion, and therefore, requires increased cooperation between tax authorities;
CELEBRATING the various efforts made in recent years to combat tax evasion and avoidance at the international level, both at the bilateral and multilateral level;
WHEREAS a coordinated effort between States is necessary to encourage all forms of administrative assistance in tax-related matters of any nature, while at the same time ensuring adequate protection of the rights of taxpayers;
RECOGNISING that international cooperation can play an important role in facilitating the proper determination of tax obligations and to help secure their rights;
WHEREAS the fundamental principles that give each person rights and obligations, determined in accordance with an appropriate legal procedure, should be recognized as applicable to tax matters in all States and such states should do what they can to protect the legitimate interests of taxpayers, including appropriate protection against discrimination and double taxation;
CONVINCED, therefore, that States should adopt measures or provide information, bearing in mind the need to protect the confidentiality of information and taking into account international instruments for the protection of the privacy and personal data flow;
CONSIDERING, the emergence of a new environment of cooperation and desiring to have a multilateral instrument that allows as many states as possible, to obtain the benefits of the new environment of cooperation and at the same time implement the highest international standards of cooperation in the field of taxation;
DESIRING to hold a convention on mutual administrative assistance in tax matters,
The following have been agreed:
CONVENTION APPLICATION SCOPE.
ARTICLE 1. OBJECT AND SUBJECTIVE SCOPE OF THE CONVENTION.
1. Subject to the provisions of Chapter IV, the Parties shall provide mutual administrative assistance in tax matters. Such assistance may include, if appropriate, measures taken by judicial bodies.
2. Such administrative assistance shall include:
a. exchange of information, including simultaneous tax audits and participation in overseas audits;
b. assistance in recovery, including the establishment of precautionary measures; and
c. document notification or move.
3. The Parties shall provide administrative assistance, whether the person concerned is a resident or a national of a Party or of any other State.
1. This Convention shall apply:
a. to the following taxes:
i. income taxes or profits,
ii. capital gains taxes, which are payable separately from income taxes or profits,
iii. taxes on equity,
that are required on behalf of one of the Parties; and
b. to the following taxes: i. income taxes, profits, capital gains or net worth that are required by political subdivisions or local authorities of a Party;
ii. compulsory social security contributions payable to the general government or to social security institutions established in accordance with public law;
iii. taxes in other categories, excluding tariffs, payable on behalf of a Party, in particular:
A. property taxes, inheritances or donations;
B. property taxes;
C. general consumption taxes, such as value-added tax or sales tax;
D. specific taxes on goods and services such as excise duties;
E. taxes on the use or ownership of motor vehicles.
F. taxes on the use or ownership of movable property other than motor vehicles;
G. any other tax;
iv. taxes in categories other than those referred to in the previous numeral iii, which are payable on behalf of the political subdivisions or local authorities of a Party.
2. The current taxes to which the Convention applies are listed in Annex A, in the categories referred to in paragraph 1.
3. The Parties shall notify the Secretary-General of the Council of Europe or the Secretary-General of the OECD (hereinafter referred to as the "depositaries") of any amendments to be made to Annex A as a result of an amendment of the the list referred to in paragraph 2. This amendment shall take effect on the first day of the month following the expiry of a period of three months after the date of receipt of such notification by the depositary.
4. The Convention shall also apply, from its adoption, any tax of an identical or substantially similar nature to be established in a Contracting State after the date of entry into force of the Convention, with respect to that Party, which is added or which replaces the current taxes listed in Annex A, and which, in that case, that Party must notify one of the depositaries of the adoption of the tax in question.
GENERAL DEFINITIONS.
1. For the purposes of this Convention, unless a different interpretation is inferred from its context:
a. the expressions 'Requesting State' and 'Requested State' mean respectively any Party requesting administrative assistance in the tax field and any Party to which it is requested to grant such assistance;
b. the term 'tax' means any tax or social security contribution to which the Convention applies to it in accordance with Article 2;
c. the term "tax credit" means any amount of tax, as well as its interest, related to administrative fines and incidental costs for its collection, which are due and have not been paid;
d. the term 'competent authority' means the persons and authorities listed in Annex B
e. the term 'nationals' in relation to a Party, means:
i. All natural persons having the nationality of that Party, and
ii. All legal persons, companies of persons, associations and other entities incorporated in accordance with the current legislation of that Party.
For each Party that has made a statement for that purpose, the terms referred to above shall be construed as being defined in Annex C.
2. For the application of the Convention by one of the Parties, any term not defined therein, unless a different interpretation is inferred from its context, shall have the meaning of the legislation of that Party concerning taxes covered by the Convention.
3. The Parties shall notify one of the depositaries of any amendment to Annexes B and C. This amendment shall take effect on the first day of the month following the expiry of a period of three months from the date of receipt of the said amendment. notification by the depositary concerned.
FORMS OF ASSISTANCE.
INFORMATION INTERCHANGE.
1. The Parties shall exchange any information, in particular as provided for in this Section, which is likely to be relevant to the administration or implementation of their domestic legislation in respect of taxes included in this Section. Convention.
2. Removed.
3. Any Party may, by means of a declaration addressed to one of the depositaries, indicate that, in accordance with its domestic law, its authorities may inform its residents or nationals before transmitting information relating to them, in accordance with Articles 5 and 7.
ARTICLE 5. EXCHANGE OF INFORMATION PER REQUEST.
1. Upon request of the requesting State, the requested State shall grant the requesting State any information referred to in Article 4 relating to specific persons or transactions.
2. If the information available in the tax files of the requested State is not sufficient to enable it to comply with the request for information, that State shall take the necessary measures to grant the requesting State the information requested.
ARTICLE 6. AUTOMATIC INFORMATION EXCHANGE.
For case categories and in accordance with the procedures to be determined by mutual agreement, two or more Parties shall automatically exchange the information referred to in Article 4.
ARTICLE 7. EXCHANGING SPONTANEOUS INFORMATION.
1. A Party shall, without prior request, transmit to another Party the information of which it is aware in the following circumstances:
a. the above Party first has reason to assume that there is a loss in the tax collection of the other Party;
b. a person who is subject to tax obtains a tax reduction or exemption in the first place, which would result in an increase in the tax or the obligation to pay tax on the other Party;
c. commercial dealings between a person subject to tax in one Party and a person subject to tax in another Party are conducted in one or more countries in such a way that it may result in tax savings in either Party or in both;
d. a Party has reason to assume that a tax saving may result from artificial transfers of profits within groups of companies;
e. if the information sent to the Party first mentioned by the other Party has allowed information to be obtained, which may be relevant for determining tax payment obligations in the latter Party.
2. Each Party shall take these measures and implement these procedures in the manner necessary to ensure that the information described in paragraph 1 is available to be transmitted to another Party.
ARTICLE 8. CONCURRENT TAX AUDITS.
1. Two or more Parties shall consult each other upon request, in order to determine the cases and procedures for simultaneous tax audits. Each Party concerned shall decide whether or not to participate in any simultaneous tax audit.
2. For the purposes of this Convention, a simultaneous tax audit means an agreement between two or more Parties to examine simultaneously, each in its own territory, the tax situation of a person or persons in whom they have a common interest or related, in order to exchange any relevant information they obtain.
1. Upon request of the competent authority of the requesting State, the competent authority of the requested State may allow representatives of the competent authority of the requesting State to be present in the part of the tax audit which is considers appropriate in the requested State.
2. If such a request is accessed, the competent authority of the requested State shall, as soon as possible, notify the competent authority of the requesting State of the place and time of the audit, the authority or the officials appointed to carry out the the audit and the procedures and conditions required by the requested State to carry out the audit. All decisions regarding the execution of the tax audit shall be taken by the requested State.
3. The Parties may inform one of the depositary of their intention not to accept, as a general rule, such requests in the manner described in paragraph 1. Such a declaration can be made or withdrawn at any time.
ARTICLE 10. CONFLICTING INFORMATION.
If a Party receives from another Party, information about the tax situation of a person who appears to be inconsistent with the information in its possession, it shall give notice to the Party that has provided the information.
CHARGING ASSISTANCE.
ARTICLE 11. COLLECTION OF TAX CREDITS.
1. Upon request of the requesting State and subject to Articles 14 and 15, the requested State shall take the necessary measures to collect the tax credits of the State referred to in the first place as if they were their own funds. fiscal.
2. The provisions of paragraph 1 shall apply only to tax credits subject to an instrument permitting its enforceability in the requesting State and, unless the Parties concerned agree otherwise, that they are not contested.
However, where the claim is against a person who is not a resident of the requesting State, paragraph 1 shall not apply unless the Parties agree otherwise, where the claim can no longer be contested.
3. The obligation to provide assistance in the recovery of tax credits relating to a deceased person or his estate is limited to the value of the assets or property acquired by each beneficiary of the estate, depending on whether the credit is charge the assets or the same beneficiaries.
ARTICLE 12. PRECAUTIONARY MEASURES.
Upon request of the requesting State, the requested State shall, in order to obtain the collection of a tax amount, take precautionary measures even if the credit has been challenged or is not subject to an instrument permitting its enforceability.
ARTICLE 13. DOCUMENTS THAT ARE APPENDED TO THE REQUEST.
1. The request for administrative assistance in accordance with this section shall be accompanied by:
a. a statement stating that the tax credit corresponds to a tax covered by the Convention and that, in the case of its payment, it has not been or will be challenged in accordance with Article 11, paragraph 2;
b. an official copy of the instrument permitting its enforceability in the requesting State; and
c. any other document that is required for recovery or to take precautionary measures.
2. The instrument permitting enforceability in the requesting State shall, where appropriate and in accordance with the provisions in force in the requested State, be accepted, recognized, completed or replaced as soon as possible. after the date of receipt of the request for assistance, by an instrument permitting its enforceability in the latter State.
1. Doubts about any period for which a tax credit cannot be required shall be governed by the law of the requesting State. The request for assistance shall be specific for that period.
2. Acts performed by the requested State to obtain a payment on the basis of a request for assistance, which would have the effect of suspending or interrupting the period referred to in paragraph 1, in accordance with the law of that State, they shall also have that effect in the legislation of the requesting State. The requested State shall inform the requesting State of such acts.
3. In any event, the requested State is not required to comply with the request for assistance that is submitted after a period of 15 years from the date of the original instrument permitting enforceability.
The tax credit granting assistance in the recovery will not have in the requested State some especially agreed priority for the tax credits of that State, even if the procedure to require the payment to be used is the applicable for your own tax credits.
The requested State may allow payment deferral or payment in partial cases if its legislation or administrative practice permits it in similar circumstances, but first it must inform the requesting State.
Section III.
Notification or Document Transfer.
Article 17. Notification or Transfer of Documents.
1. Where the requesting State so requests, the requested State shall notify or move the documents to the addressee, including those relating to court judgments, which emanate from the requesting State and which relate to a tax this Convention.
2. The requested State shall make the notification or transfer of documents:
a. through the method prescribed by its internal legislation for the notification or transfer of documents of a substantially similar nature;
b. as far as possible, through the method requested by the requesting State or the most similar method in accordance with its internal legislation.
3. A Party may carry out the notification or transfer of documents directly, through the mail, in respect of a person in the territory of another Party.
4. Nothing in the Convention shall be construed as meaning to invalidate any notification or transfer of documents by a Party, in accordance with its domestic law.
5. Where a document is notified or moved in accordance with this Article, it shall not be accompanied by a translation. However, when the recipient does not understand the language of the document, the requested State must make arrangements for it to be translated or a summary of it in its language or in any of its official languages. Alternatively, it may request the requesting State to translate the document or to accompany a summary in one of the official languages of the requested State, the Council of Europe or the OECD.
PROVISIONS REGARDING ALL FORMS OF ASSISTANCE.
ARTICLE 18. INFORMATION TO BE PROVIDED BY THE REQUESTING STATE.
1. Where appropriate, an application for assistance shall indicate:
a. the authority or agency that initiated the request made by the competent authority;
b. the name, address or any other information that would assist the identification of the person in respect of which the application was made;
c. in the case of a request for information, the manner in which the requesting State wishes to be provided to it, in order to meet its needs;
d. in the case of a request for assistance in the recovery or precautionary measures, the nature of the tax credit, the components thereof and the assets on which the tax credit can be recovered;
e. in the case of a request for the notification or transfer of documents, the nature and subject matter of the document to be notified or transferred;
f. if it is consistent with the law and administrative practice of the requesting State and is justified in accordance with the requirements of Article 21, paragraph 2, paragraph g.
2. As soon as you obtain any other information relevant to the request for assistance, the requesting State shall send it to the requested State.
ARTICLE 20. RESPONSE TO REQUEST FOR ASSISTANCE.
1. If the request for assistance is met, the requested State shall inform the requesting State of the action taken and the outcome of the assistance, as soon as possible.
2. If the request is rejected, the requested State shall inform the requesting State of that decision and the reason for the decision as soon as possible.
3. If, in respect of a request for information, the requesting State has specified the manner in which it wishes to be granted such information and the requested State is in a position to do so in such a manner, the requested State shall grant the information in the way it was requested.
ARTICLE 21. PROTECTION OF PERSONS AND LIMITS TO THE OBLIGATION TO PROVIDE ASSISTANCE.
1. Nothing in this Convention shall affect the rights and safeguards in favour of persons in accordance with the law or administrative practice of the requested State.
2. With the exception of Article 14, the provisions of this Convention shall not be interpreted as imposing the obligation of the required State to:
to carry out measures contrary to its domestic law or administrative practice, or to the legislation or administrative practice of the requesting State;
b carry out measures that would be contrary to public order (ordre public);
c providing information that cannot be obtained in accordance with its own legislation or administrative practice or in accordance with the legislation or administrative practice of the requesting State;
d provide information that may disclose any commercial, business, industrial, commercial or professional secrets or a commercial proceeding, or information whose disclosure may be contrary to public order (ordre public);
and grant administrative assistance if it considers that the tax imposition in the requesting State is contrary to generally accepted tax principles or the provisions of an agreement to avoid double taxation or any other an agreement that the requested State has concluded with the requesting State;
f to grant administrative assistance for the purpose of administering or applying a provision of the requesting State's tax legislation, or any requirement related thereto, that discriminates against a national of the requested State in respect of a national of the requesting State under the same circumstances;
g granting administrative assistance if the requesting State has not used all reasonable measures available in accordance with its legislation or administrative practice, except where recourse to such measures may create difficulties disproportionate;
provide assistance in recovery in cases where the administrative burden of that State is clearly disproportionate to the benefit to the requesting State.
3. If the information is requested by the requesting State in accordance with this Convention, the requested State shall use its measures to obtain the requested information, even if the requested State does not need such information for its own purposes. tax. Such an obligation shall be subject to the limitations contained in this Convention, but in no case shall such limitations, including specifically those of paragraphs 1 and 2, be interpreted in the sense of permitting the requested State. refuse to provide the information, only because it does not have an internal interest in such information.
4. In no case shall the provisions of this Convention, including specifically those of paragraphs 1 and 2, be interpreted in the sense of allowing the requested State to refuse to provide information only because such information is in the possession of a bank, other financial institution, agent or person acting as an agent or trustee or because it relates to the property rights of a person.
1. Any information obtained by a Party in accordance with this Convention shall be kept as secret and shall be protected in the same way as the information obtained under the domestic law of that Party and, to the extent that it is requires to ensure the necessary level of protection of personal data, in accordance with safeguards that may be specified by the Party providing the information, as required by its internal legislation.
2. Such information, in any event, may be disclosed only to persons or authorities (including courts and administrative or supervisory bodies) in charge of the determination, collection or recovery of the taxes of that Party. the declarative or executive procedures relating to those taxes or the resolution of the resources relating to them or of the supervision of the foregoing. Only those persons or authorities may use the information, and only for the purposes indicated. By way of derogation from paragraph 1, such persons or authorities may disclose information in the public hearings of the courts or in court judgments relating to such taxes.
3. If a Party makes a reservation in accordance with Article 30, paragraph 1, paragraph 1, any other Party that obtains information from the above Party shall not use such information in connection with a tax that is found. in a category that is subject to reservation. Similarly, the Party making such a reservation shall not use the information obtained in accordance with this Convention in respect of a tax of a category subject to reservation.
4. Without prejudice to paragraphs 1, 2 and 3, information received by a Party may be used for other purposes where this is practicable in accordance with the legislation of the Party providing the information and the competent authority. of that Party authorizes such use. The information that a Party grants to another Party may be transmitted by the Party to a third Party, subject to the authorisation of the competent authority of the Party referred to in the first place.
1. The processes related to measures taken by the requested State in accordance with this Convention shall be submitted only to the relevant body of that State.
2. The processes related to the measures taken by the requesting State in accordance with this Convention, in particular those relating to recovery, concerning the existence or the amount of the tax credit or the instrument permitting its They shall be carried out only before the relevant body of that State. If such processes are presented, the requesting State shall inform the requested State which shall suspend the pending decision procedure in the body concerned. However, the requested State must, if requested by the requesting State, take precautionary measures to ensure its recovery. The requested State may also be informed of such processes by any interested person. Upon receipt of such information, the requested State shall, if necessary, consult the requesting State.
3. As soon as a final resolution is granted in the processes, the requested State or the requesting State, as the case may be, shall notify the other of the resolution and the implications it has for the request for assistance.
SPECIAL PROVISIONS.
ARTICLE 24. IMPLEMENTING THE CONVENTION.
1. The Parties shall communicate to each other, through their competent authorities, to implement this Convention. The competent authorities shall communicate directly for these purposes and may authorise subordinate authorities to act in their representation. The competent authorities of two or more Parties shall mutually agree the manner in which they shall apply the Convention between them.
2. Where the requested State considers that the application of this Convention in a particular case would have serious and undesirable consequences, the competent authorities of the requested and requesting States shall consult each other and shall do so. possible to resolve such a situation by mutual agreement.
3. A coordinating body composed of representatives of the competent authorities of the Parties shall monitor the implementation and development of this Convention, with the support of the OECD. To this end, the coordinating body will recommend any action to move towards the general objectives of the Convention. In particular, it will act as a forum for the study of new methods and procedures for increasing international cooperation in tax matters and, where appropriate, will recommend revisions or amendments to the Convention. States that have signed but have not yet ratified, accepted or approved the Convention shall have the right to be represented at the meetings of the coordination body as observers.
4. A Party may request the coordinating body for its opinion on the interpretation of the provisions of the Convention.
5. Where difficulties or doubts arise between two or more Parties with regard to the implementation or interpretation of the Convention, the competent authorities of those Parties shall make every effort to resolve them by common agreement. The agreement shall be communicated to the coordinating body.
6. The Secretary-General of the OECD shall inform the Parties, and the Signatory States, which have not yet ratified, accepted or approved the Convention, the opinions issued by the coordinating body in accordance with the provisions of paragraph 4. and any mutual agreements that have been reached in accordance with paragraph 5 above.
Requests for assistance and response to them will be drawn up in one of the official languages of the OECD and the Council of Europe or in any other language agreed bilaterally between the Contracting States concerned.
Unless otherwise bilateral agreement between the Parties concerned:
a. the ordinary costs incurred in granting assistance shall be borne by the requested State;
b. the extraordinary costs incurred in granting assistance shall be borne by the requesting State.
FINAL PROVISIONS.
ARTICLE 27. OTHER INTERNATIONAL AGREEMENTS OR CONVENTIONS.
1. The possibilities for assistance referred to in this Convention do not restrict or restrict themselves to those contained in existing or future international agreements, in other agreements concluded between the Parties concerned, or in other agreements. instruments related to cooperation in tax matters.
2. Notwithstanding paragraph 1, those Parties which are Member States of the European Union may, in their mutual relations, implement the possibilities of assistance provided for in the Convention, in so far as they allow for wider cooperation. the possibilities offered by the applicable rules of the European Union.
ARTICLE 28. SIGNATURE AND ENTRY INTO FORCE OF THE CONVENTION.
1. This Convention will be open for signature by the Member States of the Council of Europe and the OECD member countries. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with one of the depositaries.
2. This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five States have expressed their consent to be bound by this Convention, as provided for in paragraph 1.
3. In relation to any Member State of the Council of Europe or any member country of the OECD which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiry of a period of three months after the date of deposit of the instrument of ratification, acceptance or approval.
4. Any Member State of the Council of Europe or any OECD member country which becomes a Party to the Convention after the entry into force of the Protocol amending this Convention, opened for signature on 27 May 2010 (the "Protocol") "), shall be a Party to the Convention as amended by that Protocol, unless they express a different intention in written communication sent to one of the depositaries.
5. After the entry into force of the 2010 Protocol, any State that is not a member of the Council of Europe or the OECD may request to be invited to sign and ratify this Convention as amended by the 2010 Protocol. Any such request shall be addressed to one of the depositaries, which shall transmit it to the Parties. The depositary shall also inform the Council of Europe's Committee of Ministers and the Council of the OECD. The decision to invite States requesting to become Parties to this Convention shall be taken by consensus of the Parties to the Convention through the coordinating body. With respect to any State ratifying the Convention as amended by the 2010 Protocol in accordance with this paragraph, the Convention shall enter into force on the first day of the month following the expiration of a period of three months. after the date of deposit of the instrument of ratification with one of the depositaries.
6. The provisions of this Convention, as amended by the 2010 Protocol, shall take effect for administrative assistance related to fiscal years commencing on or from 1 January of the year following that in which the Convention, as amended by the 2010 Protocol, entered into force with respect to a Party, or where there is no fiscal year, for administrative assistance related to tax collections arising from or from 1 January of the year following that in which the Convention, as amended by the Protocol of 2010, entered into (a) a Party shall be effective. Two or more Parties may mutually agree that the Convention, as amended by the 2010 Protocol, has effects on administrative assistance related to previous tax exercises or tax charges.
7. By way of derogation from paragraph 6, for tax matters involving intentional conduct subject to judicial proceedings in accordance with the criminal laws of the requesting Party, the provisions of this Convention, as as amended by the 2010 Protocol, shall take effect from the date of entry into force in respect of a Party in respect of tax years or previous tax charges.
ARTICLE 29. TERRITORIAL APPLICATION OF THE CONVENTION.
1. Each State may, at the time of signing or when the instrument of ratification, acceptance or approval is deposited, specify the territory or territories to which the Convention applies.
2. Each State may, at a later date, by means of a declaration addressed to one of the depositaries, extend the application of this Convention to any other territory specified in the declaration. With regard to that territory, the Convention shall enter into force on the first day of the month following the expiry of a period of three months after the date of receipt of that declaration by the depositary.
3. Any declaration made in accordance with any of the two preceding paragraphs, in respect of any territory specified in that declaration, may be withdrawn by notification addressed to one of the depositaries. Withdrawal of such declaration shall take effect on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the depositary.
1. Any State may, at the time of signing or depositing its instrument of ratification, acceptance or approval, or at any later date, declare that it reserves the right to:
a. not to grant any form of assistance in relation to the taxes of other Parties in any of the categories referred to in Article 2 (1) (b), provided that no national tax has been included in that category in the Annex A to the Convention;
b. not to grant assistance in the recovery of a tax credit, or in the recovery of an administrative fine, for all taxes or only for taxes in one or more of the categories mentioned in paragraph 1 of Article 2;
c. do not grant assistance in respect of any existing tax credit on the date of entry into force of the Convention in respect of that State or, where a reservation has previously been made in accordance with the provisions of the Incisos a or earlier, on the date on which that reservation is withdrawn in relation to the taxes of the category in question;
d. not to grant assistance on the notification or transfer of documents for all taxes or only for taxes in one or more of the categories referred to in Article 2, paragraph 1;
e. not to allow the notification or transfer of documents by mail, in accordance with the provisions of Article 17, paragraph 3.
f. apply Article 28, paragraph 7, exclusively for administrative assistance related to fiscal years beginning on or after 1 January of the third year preceding the year in which the Convention, as amended by the Protocol of 2010, entered into force with respect to a Party, or where there is no fiscal year, for administrative assistance related to tax collections arising from or from 1 January of the third year preceding that in which the Convention, as amended by the 2010 Protocol, entered into force with respect to a Party.
2. No other reservation may be made.
3. After the Convention enters into force for one of the Parties, that Party may make one or more of the reservations referred to in paragraph 1, which it has not made at the time of ratification, acceptance, or approval. Those reservations shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the reservation by one of the depositaries.
4. Any Party, which has made reservations in accordance with paragraphs 1 and 3, may withdraw them in whole or in part through a notification addressed to one of the depositaries. The withdrawal of the reserves shall take effect on the date on which the depositary receives such notification.
5. A Party which has made a reservation in respect of any provision of this Convention may not request the application of that provision by any other Party; however, if the reservation is partial, it may request the application of the that provision to the extent that it has been accepted.
1. Any Party may, at any time, denounce this Convention through a notification addressed to one of the depositaries.
2. Such denunciation shall take effect on the first day of the month following the expiry of a period of three months after the date of receipt of the notification by the depositary.
3. Any Party reporting the Convention shall be bound by the provisions of Article 22, for as long as it maintains in its possession any document or information obtained in accordance with the Convention.
ARTICLE 32. DEPOSITARIES AND THEIR FUNCTIONS.
1. The depositary to whom an act, notification or communication has been made shall notify the Member States of the Council of Europe and the OECD member countries and any Party of this Convention:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, or approval;
c. any date of entry into force of this Convention in accordance with Articles 28 and 29;
d. any statement made in accordance with the provisions of Article 4 (3) or Article 9 (3) and the withdrawal of any such statement;
e. any reservation made in accordance with Article 30 and the withdrawal of any reservation made in accordance with the provisions of Article 30, paragraph 4;
f. any notification received in accordance with the provisions of Article 2 (3) or Article 2 (4), Article 3, Article 29 or Article 31, paragraph 1;
g. any other act, notification or communication related to this Convention.
2. The depositary receiving a communication or making a notification in accordance with paragraph 1 shall immediately inform the other depositary of this situation.
In faith of which the undersigned, duly authorized, sign this Convention.
Made by the Depositary, on June 1, 2011, in accordance with Article X.4 of the Protocol amending the Convention on Mutual Administrative Assistance in Fiscal Matters, in the English and French languages, being the two equally authentic texts, in two copies of which one shall be deposited in the archives of each Depositary. Depositaries shall transmit certified copies to each Party of the Convention as amended by the Protocol and to each State qualified to be a Party.
THE UNDERSIGNED COORDINATOR OF THE INTERNAL WORKING GROUP OF TREATIES OF THE DIRECTORATE OF INTERNATIONAL LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN RELATIONS OF THE REPUBLIC OF COLOMBIA,
CERTIFIES:
That the reproduction of the text above corresponds to the copy certified by the depositary of the "Convention on Mutual Administrative Assistance in Tax Matters", made by the depositaries, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organisation for Economic Cooperation and Development (OECD), a document which is based on the file of the Internal Working Group of the Treaties of the Directorate for International Legal Affairs of this Ministry.
Dada in Bogotá, D. C., at twenty-seven (27) days of the month of August of two thousand twelve (2012).
The Coordinator of the Internal Treaty Working Group, Directorate of International Legal Affairs,
ALEJANDRA VALENCIA GARTNER.
EXPLANATORY STATEMENT
Honorable Senators and Representatives:
On behalf of the National Government and in compliance with the provisions of Articles 150 numeral 16, 189 numeral 2 and 224 of the Political Constitution of Colombia, we present to the Honorable Congress of the Republic the bill, by means of which the "Convention" is approved on Mutual Administrative Assistance in Tax Matters ", made by the depositaries, 1 June 2011 and approved by the Council of Europe and the member countries of the Organisation for Economic Cooperation and Development (OECD).
BACKGROUND
The Convention on Mutual Administrative Assistance in Tax Matters (hereinafter the "CAAMMT") is the product of the joint work of the Council of Europe and the Organization for Economic Cooperation and Development (hereinafter the "OECD"). The CAAMMT consists of two versions: (i) the original version of the year 1988, which could only be signed by the Member States of the Council of Europe or the OECD member countries, and (ii) the version as amended by the Protocol of the year 2010 which arises thanks to a call from the Member States of the Group of 20 or G20 to make it easier for developing countries to obtain the benefits of the new global tax cooperation environment, including the exchange of information in a multilateral manner.
The second version of the CAAMMT-the object of this explanatory statement-introduces important changes to the text of the first one in order to align it with the international standard for the exchange of information in tax matters and to open it for the the subscription of other States, other than the members of the Council of Europe or the OECD. To date, the updated version of the CAAMMT has been signed by Germany, Argentina, Australia, Belgium, Brazil, Canada, Korea, Costa Rica, Denmark, Slovenia, United States, Spain, Finland, France, Georgia, Greece, India, Indonesia, Ireland, Iceland, Italy, Japan, Mexico, Moldova, Norway, Netherlands, Poland, Portugal, Russia, Sweden, South Africa, Turkey, Ukraine, United Kingdom, Ghana and Tunisia.
OBJECTIVES AND RELEVANCE OF THE CONVENTION
The objective of the CAAMMT is to facilitate and increase cooperation between the States and their tax authorities so that, through a coordinated effort that encourages all forms of administrative assistance (in particular, the exchange of information, assistance in the collection and notification or transfer of documents in matters related to taxes), avoidance and tax evasion can be better combated and prevented.
Considering that efficiency in the management of public resources through the reduction of tax evasion and avoidance is one of the main strategies of effective public management, a guiding principle for promoting the exercise of one of the transversal axes (the "Good Government") embodied throughout the document that contains the bases of the current National Development Plan1, the possibility to be a part of the CAAMMT and to benefit from the administrative assistance which the States undertake to provide through this instrument, constitutes a fundamental step towards the implementation of the 2010-2014 National Development Plan.
Likewise, CAAMMT stands as the most efficient international vehicle for the achievement of these objectives, as it offers greater benefits from other instruments on the subject-such as agreements for the exchange of information on tax matters-which include "multilateralism" (cooperation between many countries under the same legal framework), the "scope" (multiple forms of cooperation and a wider scope of taxation). (a) the "flexibility" (the possibility of making reservations with regard to certain provisions) and "uniformity" (given the existence of a coordinating body which is responsible for monitoring the implementation of the Convention), in addition to the fact that through the CAAMMT the use of resources from the point of view of the Convention is optimised negotiation and ratification of international instruments.
Finally, considering that the entry to the OECD has been defined as an important strategy within the process of insertion of Colombia into the world economy2, and that, with a view to the country being invited to start the process of accession to that Organization, the Government became part of the Global Forum on Transparency and Exchange of Information on Tax Matters and, together with the Secretariat of the OECD, established the international instruments and standards that should to adopt the country in tax matters, among which is the CAAMMT, is of great The importance and national relevance of Colombia's accession to this Convention.
CONVENTION CONTENT
The CAAMMT consists of six chapters, which deal with: 1) its scope; 2) the definition of the terms and expressions used in CAAMMT; 3) the forms of assistance in tax matters; 4) the common rules applicable to such forms of assistance; 5) implementation, language and costs; and 6) some final provisions, such as entry into force, reservations, termination, and depositaries.
According to chapter 1, article second, the CAAMMT applies for the following taxes3:
i) Taxes on income or profits;
ii) Taxes on capital gains that are generated separately from income taxes or profits;
iii) Taxes on equity;
iv) Taxes on income, profits, capital gains or net worth of territorial or local character;
v) Mandatory contributions to social security, whether they are payable to the government or to social security institutions;
vi) Other tax categories, except tariffs, payable on behalf of a State Party, such as property taxes, inheritances or donations, real estate taxes, general consumption taxes, specific taxes on goods and services, taxes on the use or ownership of motor vehicles, taxes on the use or ownership of movable property other than motor vehicles and any other taxes;
vii) Taxes in categories referred to in the previous point, which are payable on behalf of the political subdivisions or local authorities of a State Party.
In Annex A of the Convention the taxes in force in each State to which the CAAMMT applies must be indicated. The Convention also applies, from its adoption, any other tax of an identical or substantially similar nature to be established in a State Party after the date of entry into force of the Convention, with respect to that State Party, which is added or which replaces the taxes listed in Annex A.
In Chapter 2, the definitions of the terms and expressions used in the text of the Convention, such as "Requesting State", "Requested State", "Tax", "Tax Credit" and "National", shall be set out in Chapter 2; include in Annex B to the Convention the persons and authorities for which the expression "competent authorities" shall be used and make a declaration in Annex C so that the terms or expressions relating thereto are understood in accordance with that declaration. Furthermore, it is clarified that any term or expression not defined in the CAAMMT, unless a different interpretation is inferred from its context, will have the meaning that at that time it is attributed to it under the internal legislation of the State Party. on the taxes covered by the Convention.
Chapter 3 contains the forms of assistance enshrined in CAAMMT. These are:
-- The exchange of information per request, which consists of the exchange, upon request of any of the States Party, of information that is likely to be relevant to the administration or effective application of its internal legislation relating to the taxes covered by this Convention;
-- The automatic exchange of information, which consists of the exchange of mass information comprising many individual cases of the same type, which is also available periodically in the system of a State. it is automatically transmitted on a routine basis, and the operability of which requires the subscription of a Memorandum of Understanding between the States Parties concerned;
-- The exchange of spontaneous information, which involves an exchange of information without prior request by one of the States Party, provided that any of the circumstances described in the Article 7or, such as the State Party that refers to the information has reason to assume that there may be a loss in tax collection in the other State Party;
-- Concurrent tax audits, which are defined as fixes between two or more States Party to simultaneously examine, each in its own territory, the tax affairs of a person or persons in which both States Parties have a common or related interest in order to exchange any relevant information they obtain.
-- Foreign tax audits, which consists of the possibility that, upon request of the competent authority of a requesting State, the competent authority of the requested State shall allow the representatives of the the competent authority of the requesting State to be present in the part of the tax audit deemed appropriate in the requested State.
-- The collection assistance, under which, upon request of the requesting State and in accordance with the provisions of the Convention relating to deadlines and priorities, the requested State takes the necessary measures (including precautionary measures) to collect the tax credits of the requesting State as if they were their own tax credits, provided that such credits or tax obligations consist of instruments that permit their enforceability in the requesting State and which, unless otherwise agreed between the States Parties concerned, does not are contested. The Convention states that when the obligation on a tax credit is not resident of the requesting State, the assistance in the recovery shall only proceed, unless the States Parties involved agree otherwise, when the credit is no longer can be challenged.
-- The notification or movement of documents, form of assistance that is provided upon request of the requesting State and imposes upon the requested State the obligation to notify or transfer the documents to its addressee (without, as a general rule, it is necessary to accompany a translation), including those relating to court judgments, which emanate from the requesting State and which relate to a tax covered by the Convention.
The CAAMMT also includes provisions for all forms of assistance. These provisions are contained in Chapter 4 of the Convention and specify, inter alia, the information that the requesting State must indicate in its application and the manner in which the requested State must respond to the request for assistance. The provisions contained in Articles 21 and 22are of particular relevance.
On the one hand, Article 21 defines the limits to the obligation to grant assistance, thus providing that the Convention cannot be interpreted in the sense of imposing an obligation on the requested State:
(a) To take measures that differ from those established in their own legislation or administrative practice, or as laid down in the legislation or administrative practice of the requesting State;
b) Take action that would be contrary to public order;
c) To provide information that cannot be obtained under its own legislation or administrative practice or under the law or administrative practice of the requesting State;
d) To supply information that reveals any commercial, business, industrial, commercial or professional secrecy or commercial procedure, or information whose disclosure is contrary to public order;
e) To grant administrative assistance if and to the extent that it considers that the imposition in the requesting State is contrary to generally accepted tax principles or to the provisions of a convention to avoid double taxation. taxation or any other convention concluded by the requested State with the requesting State;
(f) To grant administrative assistance for the purpose of effectively administering or implementing a provision of the tax legislation of the requesting State, or any requirement related thereto, that is discriminatory against a national of the requested State in comparison with a national of the requesting State under the same circumstances;
g) To grant administrative assistance if the requesting State has not used all reasonable measures that are available under its legislation or administrative practice, except where recourse to such measures creates difficulties disproportionate; and
(h) To grant assistance in recovery in cases where the administrative burden of the requested State is clearly disproportionate to the benefit to the requesting State. It is clarified that under no circumstances will the provisions of this Convention be interpreted as allowing the requested State to refuse to provide information only because it is in the possession of a bank, other financial institution, agent or a person acting under a mandate or in a fiduciary capacity, or because that information relates to units in an entity or legal person.
On the other hand, article 22 establishes the treatment and protection to which the information obtained under the CAAMMT must be submitted. In particular, it is noted that the information obtained will only be disclosed to persons or authorities (including courts and administrative or supervisory bodies) entrusted with the determination, collection or recovery of State Party taxes. obtains the information, the actual application or the prosecution in respect of such taxes, the resolution of the resources relating to them or the control of the actions referred to above. According to Article 22, only those persons or authorities may use the information exchanged under the Convention, and may do so only for those purposes. They may, however, disclose the information in public court hearings or in the legal proceedings relating to the taxes in question. In addition, it is established that the information received by a State Party may be used for other purposes, other than those entered in the Convention, when it may be used for such other purposes under the law of the State Party that provides the information and the competent authority of that State Party authorizes the different use. Information that a State Party provides to another State may be transmitted by the State to a third State Party, subject to the authorisation of the competent authority of the State Party providing the information.
Chapter 5 contains special provisions related to the implementation of the Convention, in which it is noted that the Parties must communicate through their competent authorities to implement the Convention, and that these competent authorities may agree with each other on the way in which they will apply the Convention between them. It is also established that a coordinating body composed of representatives of the competent authorities of the States Parties, which will operate under the auspices of the OECD, will monitor the implementation and development of the CAAMMT. It is further established that requests for assistance and response to them will be drawn up in one of the official languages of the OECD and the Council of Europe or in any other language agreed bilaterally between the States Parties involved, Unless otherwise agreed, the ordinary costs incurred in granting assistance shall be borne by the requested State, while the extraordinary costs incurred in granting assistance shall be borne by the requesting State.
Chapter 6 enshrines the final provisions relating to the relationship of CAAMMT with other international agreements or arrangements, to the signature and entry into force of the Convention, to its territorial application, reserves, denunciation and to the depositaries. and its functions. With regard to the possibilities of assistance contained in existing or future international agreements, in other arrangements between the States Parties involved, or in other instruments related to cooperation in tax matters, the Convention establishes that it does not restrict, nor do they restrict the possibilities of assistance contemplated in the CAAMMT.
In relation to the reserves, article 30 of the CAAMMT provides for the possibility that any State, at the time of signing or depositing its instrument of ratification, acceptance or approval, or in any Later date, reserve the right:
(a) not to grant any form of assistance in relation to the taxes of other States Parties in any of the categories mentioned in paragraph 1 (b) of Article 2, provided that there is no including any internal tax in that category in Annex A to the Convention4;
b) not to grant assistance in the collection of an obligation or tax credit or in the collection of a fine or administrative penalty for all taxes or only for certain categories of taxes;
(c) not to grant assistance in respect of any tax obligation or credit that exists on the date of entry into force of the Convention with respect to that State or, where a reservation has previously been made under the Incits a or b earlier, on the date the reservation is withdrawn against the taxes in the category in question;
d) not to grant assistance on the notification or transfer of documents for all taxes or only for certain categories of tax;
e) not to allow the notification or transfer of documents via mail (Article 17 paragraph 3); and
(f) that the provisions of the Convention do not take effect in relation to tax matters involving intentional conduct which is subject to prosecution in accordance with the criminal laws of the requesting State as established in the Article 28,7, exclusively for administrative assistance related to tax years beginning on or after 1 January of the third year preceding the year in which the Convention amended by Protocol 2010 entered into force with respect to a State Party, or where it does not exist taxable period, for administrative assistance related to tax charges arising from or from 1 January of the third year preceding the year in which the Convention as amended by the 2010 Protocol entered into force with respect to a State Party.
Finally, as to the termination, the Convention provides that any State Party may at any time denounce it by means of a notification addressed to one of the Depositary. Such denunciation shall take effect on the first day of the month following the expiry of a period of three months from the date of receipt of the notification by the Depositary, without prejudice to the State Party denouncing the CAAMMT shall be bound by the provisions of Article 22 concerning the confidentiality of the information exchanged, for as long as it holds in possession any document or information obtained under of the Convention.
For the reasons stated above, the National Government, through the Minister of Foreign Affairs and the Minister of Finance and Public Credit, requests the Honorable Congress of the Republic to approve the bill " By means of which the "Convention on Mutual Administrative Assistance in Tax Matters" is adopted, by Depositaries, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for Economic Cooperation and Development (OECD).
Of the honorable Congressmen,
The Minister of International Relations,
MARIA ANGELA HOLGUIN HANG.
The Minister of Finance and Public Credit,
MAURICIO CÁRDENAS SANTAMARIA.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., September 13, 2012.
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
DECRETA:
Article 1o. I endorsed the Convention on Mutual Administrative Assistance in Fiscal Matters, made by the Depositary, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for the Cooperation and Economic Development (OECD).
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the Convention on Mutual Administrative Assistance in Tax Matters, made by the Depositaries, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for Economic Cooperation and Development (OECD), which is approved by Article 1 of this Law, will force the Colombian State from the date on which the international link is perfected. same.
Article 3o. This law governs from the date of its publication.
Dada en Bogotá, D.C., a los
Presented to the Honorable Congress of the Republic by the Minister of Foreign Affairs and the Minister of Finance and Public Credit.
The Minister of International Relations,
MARIA ANGELA HOLGUIN HANG.
The Minister of Finance and Public Credit,
MAURICIO CÁRDENAS SANTAMARIA.
1998 424 LAW
(January 13)
by which the follow-up to the international conventions signed by Colombia is ordered.
The Congress of Colombia
DECRETA:
Article 1o. The National Government through the Foreign Ministry will submit annually to the Senate and Senate Foreign Relations Committees, and within the first thirty days of the legislative period, which begins every 20 years. July, a detailed report on how the existing International Conventions signed by Colombia with other States are being complied with and developed.
Article 2o. Each dependency of the National Government responsible for implementing the International Treaties of its competence and requiring reciprocity in them, will transfer the relevant information to the Ministry of Foreign Affairs and the Ministry of Foreign Affairs. Second.
Article 3o. The full text of this law will be incorporated as an annex to each and every International Convention that the Ministry of Foreign Affairs presents to the Congress.
Article 4o. This law governs from its promulgation.
The President of the honorable Senate of the Republic,
Amylkar Acosta Medina.
The Secretary General of the honorable Senate of the Republic,
Pedro Pumarejo Vega.
The President of the honorable House of Representatives,
Carlos Ardila Ballesteros.
The Secretary General of the honorable House of Representatives,
Diego Vivas Tafur.
REPUBLIC OF COLOMBIA
NATIONAL GOVERNMENT
Publish and execute.
Dada en Santa Fe de Bogota, D. C., on January 13, 1998.
ERNESTO SAMPER PIZANO
The Foreign Minister,
Maria Emma Mejia Velez.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., September 13, 2012.
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
DECRETA:
Article 1o. I endorsed the Convention on Mutual Administrative Assistance in Fiscal Matters, made by the Depositary, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organization for the Cooperation and Economic Development (OECD).
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the Convention on Mutual Administrative Assistance in Tax Matters, made by the Depositaries, on 1 June 2011 and approved by the Council of Europe and the member countries of the Organisation for Economic Cooperation and Development (OECD), which is approved by Article 1 of this Law, will be obliged to force the country from the date on which the international link is improved. same.
Article 3o. This law governs from the date of its publication.
The President of the honorable Senate of the Republic,
Roy Montealegre Barriers.
The Secretary General of the honorable Senate of the Republic,
Gregorio Eljach Pacheco.
The President of the honorable House of Representatives,
Augusto Posada Sanchez.
The Secretary General of the honorable House of Representatives,
Jorge Humberto Mantilla Serrano.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon review of the Constitutional Court, pursuant to article 241-10 of the Political Constitution.
Dada en Bogotá, D. C., 16 July 2013.
JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Finance and Public Credit,
MAURICIO CÁRDENAS SANTAMARIA.
* * *
1. NATIONAL PLANNING DIRECTORATE. Bases of the National Development Plan 2010-2014 "Prosperity for All", Bogotá, 2011. pp. 479-480.
2. Ibid. p. 521.
3. Pursuant to Article 30 of the Convention, each State Party may make a reservation in the sense of refusing to grant assistance in relation to the taxes of other States Parties indicated in the numerals (iv) a (vii).
4. See note 3 above.
