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Decree No. 2011 - 1834 Of December 7, 2011 On The Publication Of The Agreement In The Form Of Exchange Of Letters Between The Government Of The French Republic And The Government Of The Turks And Caicos Islands For The Exchange Of Information In...

Original Language Title: Décret n° 2011-1834 du 7 décembre 2011 portant publication de l'accord sous forme d'échange de lettres entre le Gouvernement de la République française et le Gouvernement des îles Turques et Caïques relatif à l'échange de renseignements en ...

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Summary

Implementation of articles 52 to 55 of the Constitution.

Keywords

AND EUROPEAN AFFAIRS , INTERNATIONAL AGREEMENT , BILATERAL AGREEMENT , FRANCE , TURQUES AND CAIQUE ILES , LETTERS , FISCALE MATERIAL , INFORMATION CHANGE


JORF n°0285 of 9 December 2011 page 20870
text No. 7



Decree No. 2011-1834 of 7 December 2011 on the publication of the agreement in the form of an exchange of letters between the Government of the French Republic and the Government of the Turks and Caicos Islands on the exchange of information in tax matters (a consolidated annex), signed in Paris on 18 September 2009 and in Waterloo on 5 October 2009 (1)

NOR: MAEJ1131698D ELI: https://www.legifrance.gouv.fr/eli/decret/2011/12/7/MAEJ1131698D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2011/12/7/2011-1834/jo/texte


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. 2010-843 of 23 July 2010 authorizing the approval of the agreement in the form of an exchange of letters between the Government of the French Republic and the Government of the Turks and Caicos Islands on the exchange of information in tax matters (as a whole annex), signed in Paris on 18 September 2009 and in Waterloo on 5 October 2009;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:

Article 1


The agreement in the form of an exchange of letters between the Government of the French Republic and the Government of the Turks and Caicos Islands on the exchange of information in tax matters (a joint annex), signed in Paris on 18 September 2009 and in Waterloo on 5 October 2009, will be published in the Official Journal of the French Republic.

Article 2


The Prime Minister and the Minister of State, Minister for 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.

  • Annex



    A C C O R D


    EXCHANGE OF LETTERS TO THE GOVERNMENT OF THE FRANÇAISE REPUBLIC AND GOVERNMENT OF TURKING ISLANDS AND CAICAS RELATING TO THE ECHANGE OF FISCALE INFORMATION (ENSEMBLE ANNEX)


    THE MINISTER OF BUDGET,
    PUBLIC ACCOUNTS,
    PUBLIC FUNCTION
    AND REFORM OF THE STATE


    Paris, September 18, 2009.


    To Mr. Gordon Wetherell,
    Governor of Turks and Caicos Islands


    Governor,
    I have the honour of my Government to propose to you the provisions contained in the annex to this letter. I would be grateful if you could let me know if the terms of this annex were to be accepted by your Government.
    In this case, this letter and its annex, as well as your reply, will form the agreement between our two Governments on the exchange of tax information, which will come into force after the notification by each of our two Governments to the other of the fulfilment of the internal procedures required by its legislation, in accordance with Article 12.
    I ask you to believe, Mr. Governor, in the assurance of my best consideration.


    Eric Woerth
    THE GOVERNMENT
    TURKEY ISLANDS
    AND CAIQUES


    Waterloo, October 5, 2009.


    To Mr. Eric Woerth, Minister of Budget, Public Accounts, Public Service and State Reform
    Excellency,
    I have the honour of my Government to acknowledge receipt of your letter dated 24 September 2009, the following:
    "I have the honour of my Government to propose to you the provisions contained in the annex to this letter. I would be grateful if you could let me know if the terms of this annex were to be accepted by your Government.
    In this case, this letter and its annex, as well as your reply, will form the agreement between our two Governments on the exchange of tax information, which will come into force after the notification by each of our two Governments to the other of the fulfilment of the internal procedures required by its legislation, in accordance with Article 12. »
    In response, I have the honour to inform you, under the powers conferred upon me, that the provisions set out in the annex to this letter have been approved by the Government of the Turks and Caicos Islands.
    Please believe, Your Excellency, in the assurance of my highest consideration.


    Gordon Wetherell,
    Governor
    A N N E X E


    AGREEMENT BETWEEN THE GOVERNMENT OF THE FRANÇAISE REPUBLIC AND THE GOVERNMENT OF TURKING ISLANDS AND CAICAS RELATING TO THE ECHANGE OF FISCALE INFORMATION
    CONSIDERING that the Government of the French Republic and the Government of the Turks and Caicos Islands ("the Contracting Parties") wish to strengthen and facilitate the implementation of the provisions governing the exchange of information in tax matters;
    CONSIDERING that the Government of the Turks and Caicos Islands, under the powers conferred upon it by the United Kingdom, has the power to negotiate, conclude and apply an agreement for the exchange of tax information with the Government of the French Republic;
    Contracting Parties agreed to conclude this Agreement, which only creates obligations for Contracting Parties:


    Article 1
    Object and scope


    1. The competent authorities of the Contracting Parties shall provide assistance by the exchange of information that is likely to be relevant to the application and enforcement of the domestic legislation of the Contracting Parties relating to the taxes and tax areas covered by this Agreement. This information is likely to be relevant to the determination, establishment, control and collection of such taxes, the recovery and enforcement of tax claims, or for tax investigations or prosecutions.
    2. The rights and protections enjoyed by persons under the required legislative or regulatory provisions or administrative practices of the requested Party shall remain applicable to the extent that they incur or unduly delay an effective exchange of information.


    Article 2
    Jurisdiction


    In order to enable the implementation of the provisions of this Agreement, the information shall be provided in accordance with this Agreement by the competent authority of the requested Party, whether or not the information relates to a resident, a national or a citizen of a Contracting Party, or be held or not by that resident, national or citizen. A Requested Party is not subject to the obligation to provide information that is not held by its authorities, or in the possession or control of persons under its territorial jurisdiction or likely to be obtained by them.


    Article 3
    Taxes targeted


    1. The taxes covered by this Agreement are the existing taxes provided by the legislative and regulatory provisions of the Contracting Parties.
    2. This Agreement shall also apply to identical or similar taxes that would be established after the date of signature of this Agreement and that would be in addition to or replace existing taxes.
    3. In addition, this Agreement applies to all other taxes that Contracting Parties may agree by exchange of letters.
    4. The competent authorities of the Contracting Parties shall communicate the relevant amendments to the tax measures and related information collection measures referred to in this Agreement.


    Article 4
    Definitions


    1. For the purposes of this Agreement, unless otherwise defined:
    (a) "France" means the European and overseas departments of the French Republic, including the territorial sea and beyond it the areas on which, in accordance with international law, the French Republic has sovereign rights for the exploration and exploitation of the natural resources of the seabed, their basement and the underlying waters;
    (b) "Turkish and Caicos Islands" means the territory of the Turks and Caicos Islands;
    (c) The term "competent authority" means:
    (c) (ii) In the case of France, the Minister of Finance or his authorized representative;
    (c) (ii) in the case of Turks and Caicos Islands, the Permanent Secretary of the Ministry of Finance or a person or authority appointed by him in writing;
    (d) The term "person" means a natural person, a legal person and any grouping of such persons;
    (e) The term "tax" means any tax to which this Agreement applies;
    (f) The term "Applicant Party" means the requesting Party;
    (g) The term "Required Party" means the Party to which information is requested;
    (h) "Information collection measures" means the legislative and regulatory provisions as well as administrative or judicial procedures that allow a Contracting Party to obtain and provide the requested information;
    (i) The term "intelligence" means any fact, declaration, document or file, whatever its form;
    (j) The term "in criminal tax matters" means any tax case involving an intentional act punishable by prosecution under the criminal law of the requesting Party;
    (k) The term "criminal law" refers to all criminal provisions described in domestic law, which are contained in tax legislation, in the Criminal code or other laws.
    2. For the purposes of this Agreement at any time given by a Contracting Party, any term or expression not defined therein shall, unless the context requires a different interpretation, the meaning assigned to it at that time by the law of that Contracting Party, the meaning assigned to that term or expression by the tax law of that Contracting Party in respect of the meaning assigned to it by the other branches of the law of that Contracting Party.


    Article 5
    Exchange of information on request


    1. The competent authority of the requested Party shall provide the information on request in writing for the purposes referred to in Article 1. Such information shall be exchanged, whether or not the requested Party needs such information for its own tax purposes or regardless of whether or not the act under investigation would have constituted a criminal offence under the law of the requested Party if it had occurred in the requested Party.
    2. If the information available to the competent authority of the requested Party is not sufficient to enable it to respond to the request for information, that Party shall take all appropriate measures to collect the information necessary to provide the requesting Party with the requested information, even if the requested Party does not require that information for its own tax purposes.
    3. Upon specific request by the competent authority of the requesting Party, the competent authority of the requested Party shall provide the information referred to in this Article, to the extent that its domestic law authorizes it, in the form of testimony of witnesses and certified copies in accordance with the original documents.
    4. Each Contracting Party shall ensure that its competent authorities, for the purposes of this Agreement, have the right to obtain and provide upon request:
    (a) Information held by banks, other financial institutions and any person acting as an agent or trustee;
    (b) (i) information relating to legal owners and actual beneficiaries of companies, partnerships, collective investment funds, and other persons,
    (b) (ii) in the case of a trust, information on constituents, trustees, beneficiaries and third protectors; and
    (b) (iii) in the case of foundations, information on founders, board members of the foundation and beneficiaries.
    5. The competent authority of the requesting Party shall provide the following information to the competent authority of the requested Party:
    (a) The identity of the person under control or investigation;
    (b) The period on which the request for information is made;
    (c) The nature of the information requested and the form in which the requesting Party wishes to receive them;
    (d) The tax purpose in which the information is requested;
    (e) Reasons that suggest that the information requested is held in the requested Party or is in the possession or control of a person within the jurisdiction of the requested Party, or may be obtained by that person;
    (f) To the extent they are known, the name and address of any person to whom it is necessary to think that it holds, controls or is able to obtain the requested information;
    (g) A statement certifying that the application complies with the legislative provisions and administrative practices of the requesting Party;
    (h) A statement certifying that the requesting Party used to obtain the information all available means in its own territory, apart from those that could raise disproportionate difficulties.
    6. To ensure a prompt response, the competent authority of the requested Party:
    (a) Acknowledging receipt of the request in writing to the competent authority of the requesting Party and, within 60 days of receipt of the application, advises that authority of any deficiencies in the application;
    (b) If the competent authority of the requested Party was unable to obtain and provide the information within 90 days of receipt of the request, it shall inform the requesting Party of the information, indicating the reasons for the inability to provide the information.


    Article 6
    Foreign tax surveys or controls


    1. The requested Party may, within the limits authorized by its domestic law, with reasonable notice from the requesting Party, authorize representatives of the competent authority of the requesting Party to enter the territory of the requested Party to interrogate physical persons and examine documents, with the prior written consent of the persons concerned. The competent authority of the requesting Party shall inform the competent authority of the requested Party of the date and place of the meeting with the persons concerned.
    2. At the request of the competent authority of the requesting Party, the competent authority of the requested Party may authorize representatives of the competent authority of the requesting Party to attend a tax check in the territory of the requested Party.
    3. If the application referred to in paragraph 2 is accepted, the competent authority of the requested Party conducting the control shall, as soon as possible, communicate to the competent authority of the requesting Party the date and place of the control, the authority or person designated to carry out the control, and the procedures and conditions required by the requested Party to conduct the control. Any decision on the conduct of the tax control shall be taken by the requested Party leading it.


    Article 7
    Possibility of rejecting an application


    1. The competent authority of the requested Party may refuse assistance where the request is not submitted in accordance with this Agreement or where the disclosure of the requested information is contrary to public order.
    2. The provisions of this Agreement shall not require a Contracting Party to provide any material covered by the legal privilege or information that would disclose a commercial, industrial or commercial secret or a commercial process, provided that information of the type referred to in paragraph 4 of Article 5 may not, for that sole reason, be considered a secret or a commercial process.
    3. An application for information may not be rejected on the grounds that the tax claim under the application is contested.
    4. The requested Party is not required to obtain or provide information that the requesting Party may not obtain under its own right for the purposes of the application or enforcement of its own tax legislation or in response to a valid request made in similar circumstances by the Party required under this Agreement.
    5. The Requested Party may reject a request for information if the information is requested by the requesting Party to enforce or enforce a provision of the tax legislation of the requesting Party, or any obligation related to it, which is discriminatory against a national or citizen of the requested Party in respect of a national or citizen of the requesting Party in identical circumstances.


    Article 8
    Confidentiality


    1. All information received by the competent authority of a Contracting Party shall be held confidential.
    2. The information provided to the competent authority of the requesting Party may be used for purposes other than those referred to in Article 1 with the prior, written and express authorization of the requested Party.
    3. The information provided may only be disclosed to the persons or authorities (including the judicial and administrative authorities) concerned for the purposes provided for in this Agreement and may only be used by such persons or authorities for such purposes. For these same purposes, information may be disclosed at public court hearings or in court decisions.
    4. The information provided to the requesting Party under this Agreement may not be disclosed to any other foreign authority.


    Article 9
    Fees


    Regular assistance costs are borne by the requested Party. The requested Party may request the requesting Party to reimburse the extraordinary expenses directly incurred for assistance.


    Article 10
    Application provisions


    Contracting Parties shall adopt any legislation necessary to comply with this Agreement and give effect to it. These include: availability of information, access to this information, exchange of this information.


    Article 11
    Friendly procedure


    1. In the event of difficulties or doubts between the Contracting Parties concerning the implementation or interpretation of this Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement.
    2. In addition to the above agreements, the competent authorities of the Contracting Parties may jointly determine the procedures to be followed in accordance with Articles 5, 6 and 9.
    3. The competent authorities of the Contracting Parties may communicate directly with each other in order to reach agreement under this Article.
    4. Contracting Parties may also, as appropriate, agree in writing other forms of dispute resolution.


    Article 12
    Entry into force


    This Agreement comes into force after the Contracting Parties have mutually notified themselves of the fulfilment of the internal procedures required for its entry into force. As from the date of its entry into force, this Agreement shall take effect:
    (a) In criminal tax matters at that date; and
    (b) With respect to all other matters referred to in section 1, on that same date, but only for fiscal years that begin on or after that date or, in the absence of a fiscal year, for all tax obligations that arise on or after that date.


    Article 13
    Denunciation


    1. Each Contracting Party may denounce this Agreement by notifying this denunciation.
    2. The denunciation takes effect on the first day of the month following the expiration of a period of three months after the date of receipt of the notification of denunciation by the other Contracting Party.
    3. In the event of denunciation of this Agreement, Contracting Parties shall remain bound by the provisions of Article 8 for any information obtained under this Agreement. All requests for information received up to the effective date of denunciation shall be processed in accordance with the conditions of this Agreement.


Done on 7 December 2011.


Nicolas Sarkozy


By the President of the Republic:


The Prime Minister,

François Fillon

The Minister of State,

Minister for Foreign Affairs

and European,

Alain Juppé

(1) This Agreement entered into force on 14 July 2011.
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