Key Benefits:
On 14 November 2007 (State on 27 January 2009)
The Swiss Federal Council,
Having regard to the Federal Order of 22 June 1951 concerning the implementation of international conventions concluded by the Confederation in order to avoid double taxation 1 , and in accordance with the new Convention of 8 May 2007 between the Swiss Confederation and the Republic of South Africa in order to avoid double taxation in the field of income tax (Convention) 2 ,
Stops:
1 On the Swiss side, the Federal Contributions Administration (AFC) has the power to communicate to the South African authorities the information provided for in art. 25, para. 1 of the Convention. Requests for South African intelligence to other authorities must be forwarded to the AFC.
2 The AFC shall decide on disputes relating to the communication of the information referred to in paragraph 1.
3 Recourse to the AFC decision is governed by the general provisions of the federal procedure.
1 Requests for information exchange in the event of tax evasion under s. 25, para. 1, of the Convention emanating from the competent South African authorities, is the subject of a preliminary examination by the AFC.
2 If a request for exchange of information cannot be made, the AFC shall inform the competent South African authority. The Commission may supplement its request.
3 Where the preliminary examination shows that the conditions of s. 25 of the Convention in relation to c. 3 of its protocol is completed, the AFC informs the person who holds the information (holder of information) in Switzerland of the existence of the application and the information requested. The remainder of the content of the application is not communicated to the information holder.
4 The AFC simultaneously requests the holder of the information to provide the information and invite the person concerned to designate a representative in Switzerland who is authorised to receive notifications.
1 If the information holder submits the requested information to the AFC, the information holder reviews the information and makes a final decision.
2 If the information holder, the data subject or his authorized agent to receive notifications refuses to provide the requested information, the AFC requires, by decision, the holder of the information to provide the information, as soon as Not later than three months after the notification of the decision, the information indicated in the South African application.
1 The AFC shall also notify the person concerned of the decision addressed to the holder of the information and a copy of the request of the competent South African authority, provided that the request does not expressly require the maintenance of secrecy.
2 If the person concerned has not appointed an authorised representative to receive notifications, the notification shall be made by the competent South African authority in accordance with South African law. At the same time, the AFC shall fix a time limit for the person concerned to consent to the exchange of information or to appoint an authorised representative to receive notifications.
3 The data subject may participate in the proceedings and consult the file. Only the consultation of documents and procedural documents which must be kept secret may be refused or when the art. 25 of the Convention requires it.
4 The objects, documents or documents that have been provided to or obtained from the AFC may be used for the purposes of applying Swiss tax law only when the final decision is entered into force. Art. 9, para. 4, is reserved.
1 If the information required by the AFC is not provided within the time limit, it shall order measures of restraint. It may seize objects, documents or documents submitted in written form or on data carriers or images or carry out searches.
2 The coercive measures shall be ordered by the Director of the AFC or by his or her alternate. They must be carried out by officials trained for this purpose, and only objects, documents or parts that may be related to the request for exchange of information may be seized.
3 If there is a danger in the home and a measure cannot be ordered on time, the employee may take a coercive measure on his or her own initiative. The measure must be approved within three days by the AFC Director or his or her alternate.
4 Cantonal and communal fonts support the AFC in the execution of coercive measures.
1 Premises may be searched only if it is likely that the objects, documents or documents relating to the request for exchange of information are there.
2 The search is governed by s. 49 of the Federal Act of 22 March 1974 on administrative criminal law 1 .
1 The search for objects, documents or parts must be carried out in the most important respects for the private sphere.
2 Prior to the search, the holder of the objects, documents or documents or the holder of the information must have the opportunity to indicate their contents. The information holder is required to assist in locating and identifying objects, documents or parts.
3 The holder of the objects, documents or coins or the information holder shall bear the costs of the coercive measures.
1 When the data subject gives his or her consent to the handing over of the information to the competent South African authority, it shall inform the AFC in writing. His consent is irrevocable.
2 The AFC shall note the consent of the person concerned in writing and terminate the procedure by forwarding the information to the competent South African authority.
3 If the consent relates only to part of the information, the other objects, documents or parts shall be obtained in accordance with the procedure described in Art. 5-7 above and forwarded to the competent South African authority by a final decision.
1 The AFC makes a final reasoned decision on the existence of tax evasion and on the transmission of the objects, documents or documents required by the competent South African authority.
2 The decision shall be notified to the person concerned through his authorised representative to receive notifications.
3 If no representative has been appointed to receive notifications, the notification shall be made by publication in the Federal Gazette.
4 After the final decision is made, the AFC may use the information provided to the competent South African authority.
1 The appeal against the final decision of the AFC on the transmission of information is governed by the general provisions of the federal procedure.
2 The information holder is also entitled to use the information to the extent that he or she is asserting his or her own interests.
3 Any decision prior to the final decision, including a decision on coercive measures, is immediately enforceable and can only be contested in conjunction with the final decision.
1 RS 672.2
2 RS 0.672.911.82
