Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of State, Minister for Foreign and European Affairs,
Considering the Constitution, in particular articles 52 to 55;
Vu la Act No. 2010-1198 of 12 October 2010 authorizing the approval of the avenor to the agreement between France and Switzerland to avoid double taxation in respect of taxes on income and on fortune;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France;
Vu le Decree No. 67-879 of 13 September 1967 publishing the agreement between France and Switzerland with a view to avoiding double taxation on income and wealth taxes and the additional protocol of 9 September 1966;
Vu le Decree No. 70-1009 of 26 October 1970 publishing the advent to the convention between France and Switzerland with a view to avoiding double taxation in respect of taxes on income and fortune of 9 September 1966, signed in Paris on 3 December 1969;
Vu le Decree No. 98-747 of 20 August 1998 issuing the amendment to the agreement between the French Republic and the Swiss Confederation with a view to avoiding double taxation on income and property taxes, signed on 9 September 1966 and amended by the date of 3 December 1969, and the final protocol annexed to the agreement between the French Republic and the Swiss Confederation with a view to avoiding double taxation on inheritance taxes, signed on 31 December 1997,
Decrete:
The amendment to the agreement between France and Switzerland to avoid double taxation on income and property taxes, signed in Paris on 9 September 1966 (and its additional protocol) and amended by the actor signed in Paris on 3 December 1969 and by the actor signed in Paris on 22 July 1997, signed in Bern on 27 August 2009, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister of State, Minister of Foreign and European Affairs, are responsible, each with regard to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.
A V E N A N T
TO THE CONVENTION BETWEEN FRANCE AND SWITZERLANDS TO SEE IMPOSIBLE DOUBLES ON THE RESPONSE AND ON THE FORTUNE, SIGNED TO PARIS on 9 SEPTEMBER 1966 (ET SON PROTOCOLE ADDITIONNEL) AND MODIFIED BY THE ADDRESSED TO PARIS 3 DECEMBER 1969
THE GOVERNMENT OF THE FRENCH REPUBLIC,
AND
THE PRESIDENT OF THE SECURITY COUNCIL
WHEREAS to amend the Convention between France and Switzerland with a view to avoiding double taxation on income and wealth taxes, signed in Paris on 9 September 1966, successively amended by two amendments signed in Paris on 3 December 1969 and 22 July 1997 (hereinafter referred to as "the Convention"),
Agreed on the following:
Article 1
1. The text of Article 11, paragraph 2. (b) (ii) of the Convention:
“2. (b) (ii) Exemption of deduction to the source provided for in (i) does not apply where the distributed dividends benefit a legal person controlled directly or indirectly by persons who are not resident of one of the Contracting States, unless that legal entity justifies that the contribution chain is not primarily intended to benefit from the provisions of (i). »
2. A paragraph 2 is included in the Convention. (b) (iii) to article 11 as follows:
“2. (b) (iii) However, where the exemption from deduction to the source is requested on the basis of Article 15, paragraph 1 of the Agreement of 26 October 2004 between the Swiss Confederation and the European Community, providing for measures equivalent to those provided for in Council Directive 2003/48/EC on the taxation of the income of savings in the form of interest payments, the preceding paragraph applies only if the legal person is controlled directly or indirectly by a State or a State »
Article 2
The text of Article 14 of the Convention is as follows:
“Article 14
1. Where a resident of a Contracting State receives an income element from the other Contracting State and remits, directly or indirectly, at any time and in any form, at least half of that income to a person or entity that is not a resident of that other Contracting State, that income element may not benefit from the benefits of this Convention.
2. The stipulations of paragraph 1 of this article shall not apply where the person requesting the benefit of the treaty benefits determines that the operations in question are not primarily intended to benefit from this Convention. This condition is deemed to be satisfied when the income element:
(i) is surrendered by the resident of a Contracting State to a person or entity not related to him or her, or
(ii) Would have benefited from a conventional equivalent or more favourable treatment if it had been directly perceived by the person to whom it is surrendered.
3. The provisions of paragraph 1 of this Article shall not apply where the benefit provided for in Article 11, paragraph 2. (b) (i). »
Article 3
The text of article 17, paragraph 3, of the Convention is as follows:
“3. Notwithstanding the preceding provisions of this Article, remuneration received for an employee employed on board a ship, aircraft or railway vehicle operated in international traffic or on board a ship serving in inland navigation shall be taxed in the Contracting State where the effective management seat of the enterprise is located. »
Article 4
1. The single paragraph of Article 20 of the Convention becomes paragraph 1.
2. It is inserted in the Convention a paragraph 2 to article 20 as follows:
“2. Notwithstanding the provisions of paragraph 1, such pensions and other similar remuneration shall also be taxable, within the limits of the fraction not imposed in the other Contracting State, in the Contracting State from which they arise, if they are not imposed, in whole or in part, in the other Contracting State under its domestic law. »
Article 5
1. The single paragraph of Article 21 of the Convention becomes paragraph 1.
2. It is inserted in the Convention a paragraph 2 to article 21 as follows:
“2. The provisions of Articles 17, 18, 19 and 20 apply to wages, salaries, pensions and other similar remuneration paid in respect of services rendered in an industrial or commercial activity carried out by a Contracting State or one of its political subdivisions or local authorities, or by one of their legal entities of public law. »
Article 6
It is inserted in the Convention a paragraph 5 to article 27 as follows:
« 5. Where a resident enterprise of a Contracting State has submitted to the competent authority of one of the Contracting States, pursuant to paragraph 1, a case under Article 9 of this Convention or relating to the existence of a permanent establishment, within the meaning of Article 5 of this Convention, in the other Contracting State or relating to the distribution of profits between that undertaking and its permanent establishment located in the other Contracting State, and However, unresolved issues shall not be subject to arbitration if any person directly concerned with this case is still in law, according to the domestic law of one of the Contracting States, to obtain a judicial decision of that Contracting State on the same matters, or if such a court decision has already been rendered. The arbitration decision shall bind the two Contracting States and shall be applied notwithstanding any time limit in the domestic law of those States. The competent authorities of the Contracting States shall jointly provide for the application of this paragraph. »
Article 7
The text of article 28 of the Convention is as follows:
“Article 28
1. The competent authorities of the Contracting States shall exchange the information likely to be relevant to the application of the provisions of this Convention or for the administration or application of the domestic law relating to the taxation of any kind or denomination perceived on behalf of the Contracting States, their political subdivisions or their local authorities to the extent that the taxation it provides is not contrary to the Convention. The exchange of information is not restricted by sections 1 and 2.
2. The information received under paragraph 1 by a Contracting State shall be kept secret in the same manner as the information obtained pursuant to the domestic legislation of that State and shall be communicated only to the persons or authorities (including the courts and administrative bodies) concerned by the establishment or collection of the taxes referred to in paragraph 1, by the procedures or prosecutions relating to such taxes, by the decisions on remedies relating to such taxes, or by the control of the above. These individuals or authorities only use this information for these purposes. They may disclose this information in public court hearings or judgments. Notwithstanding the foregoing, the information received by a Contracting State may be used for other purposes where this is the result of the laws of both States and where the competent authority of the State providing the information authorizes such use.
3. In no case shall the provisions of paragraphs 1 and 2 be construed as imposing on a Contracting State the obligation:
(a) To take administrative measures derogating from its legislation and administrative practice or those of the other Contracting State;
(b) To provide information that could not be obtained on the basis of its legislation or in the course of its normal administrative practice or those of the other Contracting State;
(c) To provide information that would reveal a commercial, industrial, professional or commercial secret or information that would be contrary to public order.
4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use the powers available to it to obtain the information requested, even if it does not need it for its own tax purposes. The obligation contained in the previous sentence shall be subject to the limitations provided for in paragraph 3 unless such limitations are likely to prevent a Contracting State from communicating information solely because they do not have an interest in it in the national context.
5. In no case shall the provisions of paragraph 3 be construed as permitting a Contracting State to refuse to disclose information solely because the information is held by a bank, other financial institution, an agent or a person acting as an agent or trustee or because that information relates to the property rights of a person. For the purpose of obtaining the information mentioned in this paragraph, notwithstanding paragraph 3 or any contrary provision of domestic law, the tax authorities of the requested Contracting State shall thus have the procedural powers that permit them to obtain the information referred to in this paragraph. »
Article 8
An article 28 bis is included in the Convention, as follows:
“Article 28 bis
1. The Contracting States shall provide mutual assistance for the notification of acts and documents relating to the collection of taxes covered by the Convention, as well as:
(a) For France
– VAT;
- registration rights;
- the tax on the value of buildings held by legal persons;
- professional tax;
– housing tax;
- and land taxes.
(b) For Switzerland:
– VAT;
- registration rights;
land taxes;
and taxes on estates and donations.
2. A State may make the notification of a document directly by post to a person in the territory of the other State. Notifications are sent by registered mail with acknowledgement of receipt. The recipient is deemed to have been informed of the notification on the date of submission of the fold.
3. In the event of an emergency or failure of the procedure provided for in paragraph 2, the requested State shall, upon request of the requesting State, notify in the form prescribed by its domestic law for the notification of acts or documents of an identical or similar nature. Where Switzerland is the requested State, the notification may also be made by the Federal Administration of Contributions.
4. Claims notified in the official language or one of the official languages of the requesting State are worth information from the debtor.
5. The competent authorities of the States shall mutually agree on the terms and conditions of application of this Article. »
Article 9
1. A new item V is included in the Additional Protocol to the Convention, as follows:
"Despite the provisions of Article 1 of the Convention, pension funds, pension funds or pension institutions are eligible for benefits under Article 11, paragraph 2, (a) and Articles 12 and 13 of the Convention, provided that at the end of the previous fiscal year, more than 50 per cent of their beneficiaries, members or participants are natural persons with the status of a resident of one or the other Contracting States. The term pension fund, pension fund or pension institution means any person:
(a) Constituted and recognized as such under the legislation of a Contracting State;
(b) Doing an activity primarily to administer or pay pensions, pension benefits or other similar remuneration, or to generate income for the benefit of such persons; and
(c) Exemption of tax in that Contracting State in respect of income derived from activities referred to in (b). »
2. Items V, VI, VII, VIII and IX of the Additional Protocol to the Convention are renumbered as items VI, VII, VIII, IX and X respectively.
Article 10
An item XI is included in the Protocol to the Convention, which reads as follows:
"In cases of exchange of information made on the basis of Article 28 of the Convention, the competent authority of the requesting State shall make its requests for information after using the usual sources of information provided for in its domestic tax procedure.
The purpose of the reference to "relevant" information is to ensure an exchange of tax information that is as broad as possible, without it being legally applicable to the Contracting States "to go fishing for information" or to request information that is unlikely to be relevant to elucidating the tax matters of a specified taxpayer.
The requesting competent authority shall provide the following information to the competent authority of the requested State:
(a) The name and address of the person under control or investigation and, if available, any other element that facilitates the identification of the person (date of birth, state-civil...);
(b) The period covered by the application;
(c) A description of the information sought, including its nature and the form in which the requesting State wishes to receive information from the requested State;
(d) The tax purpose in which the information is requested;
(e) To the extent they are known, the names and addresses of any person to whom it is deemed to be in possession of the information requested.
The rules of administrative procedure relating to the rights of the taxpayer shall apply in the requested State, provided that their application may unduly impede or delay the effective exchange of information.
It is understood that Contracting States are not required, on the basis of Article 28 of the Convention, to exchange spontaneous or automatic information. »
Article 11
1. Each Contracting State shall notify the other of the fulfilment of the internal procedures required in respect of the entry into force of this Advant, which shall take effect on the day of receipt of the last notification.
2. The provisions of the Avenor shall apply, in respect of income taxes, to the related income, as the case may be, in any calendar year or year beginning after the calendar year in which the Avenor entered into force.
3. Notwithstanding the provisions of paragraph 2, this Advant shall apply to interchange of information in respect of any calendar year or year beginning on or after January 1 of the year immediately following the date of signature of this Avenor.
4. Article 28 bis shall apply to any non-prescribed receivable, in accordance with the law of the requesting State, on the date of entry into force of this Advantage.
5. The Avenor remains in force as long as the Convention.
6. As soon as the Avenor comes into force, reference should be made to the Convention as the amended "Convention between France and Switzerland of 9 September 1966, with a view to eliminating double taxes on income and capital taxes and preventing tax evasion and tax evasion (a Protocol)."
Done in Bern on 27 August 2009, in duplicate in French.
For the Government
of the French Republic:
The Minister of Economy,
Industry and Employment,
Christine Lagarde
For the Swiss Federal Council:
President
Swiss Confederation,
Hans-Rudolf Merz
Done in Paris, December 10, 2010.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
The Minister of State,
Minister for Foreign Affairs
and European,
Michèle Alliot-Marie
