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672.911.81 order on the convention against double taxation concluded between the Switzerland and South Africa from November 14, 2007 (report on January 27, 2009) the Swiss federal Council, saw the federal decree of 22 June 1951 concerning the execution of international conventions concluded by the Federal Government to avoid double taxation, and in application of the new convention of 8 May 2007 agreement between the Swiss Confederation and the Republic of South Africa to avoid the double charges tax on income (Convention), stop: Section 1 Exchange of information in general art. 1 on the Swiss side, the Federal Administration (FTA) is responsible to communicate to the South African authorities the information contemplated in art. 25, by. 1, of the Convention. The South African information requests to other authorities should be passed on to the AFC.
The AFC adjudicates disputes relating to the communication of the information referred to in the al.1.
The appeal against the decision of the CFA is governed by the General provisions of the Federal procedure.
Section 2 Exchange of information in cases of tax fraud art. 2 preliminary review of South African requests requests for Exchange of information in cases of tax fraud referred to in art. 25, by. 1, of the Convention which come from South African authorities undergo a preliminary review by the AFC.
If it can be given a request for Exchange of information, the AFC actually part in South African authority. It can complete the application.
When the preliminary examination shows that the conditions of art. 25 of the Convention in relation to No 3 of its Protocol are met, the AFC informs the person who holds in Switzerland of the information (owner information) relating to the existence of the application and the requested information. The rest of the content of the request is not communicated to the holder of the information.
The AFC calls simultaneously on the holder of information to provide the information and to invite the person concerned to designate in Switzerland an agent authorized to receive notifications.
Art. 3 obtain information if the holder of information back to AFC information, this last review and makes a final decision.
If the holder of the information, the person concerned or his authorized representative to receive notifications refuses to provide the requested information, enjoins AFC, by decision, the holder of information to provide, as soon as possible but at the latest within three months following the notification of the decision, the information shown in the South African application.
Art. 4 human rights concerned the AFC shall also notify the person concerned the decision addressed to the holder of information as well as a copy of the request of the South African competent authority, provided that the application does not expressly require the maintenance of secrecy.
If the person concerned has not designated an agent authorized to receive notifications, the notification shall be made by the competent South African authority under South African law. Simultaneously, the AFC fixed to the person concerned a delay to consent to the sharing of information or to designate an authorized representative to receive notifications.
The person concerned may participate in the proceedings and access to the file. Only the consultation of parts and the pleadings there is place to keep secrets may be refused or when art. 25 of the Convention requires it.
The objects, documents or parts that were given to the AFC or that it has obtained can be used for the purposes of Swiss tax law only when the final decision came into force. Art. 9, by. 4, is reserved.
Art. 5 measures of constraint if the information required by the FTA are not provided by the deadline, it will order measures of constraint. It can enter the objects, documents or parts presented in written form or on media data or images or conduct searches.
Coercive measures shall be ordered by the Director of the AFC or his Deputy. They must be performed by staff trained for this purpose, and only can be seized the objects, documents or parts that could be in relation to the request for Exchange of information.
If there is danger in delay and an order may be made in time, the employee can take the measure of constraint on its own initiative. The measure must be approved within three days by the Director of AFC or his Deputy.
The cantonal and communal police assist the AFC in the execution of measures of constraint.
Art. 6 search of premises of the premises cannot be searched unless it is likely that the objects, documents or parts in connection with the request for Exchange of information held there.
The search is governed by art. 49 of the Federal law on administrative penal law on March 22, 1974.
RS 313.0 art. 7 seizure of objects, documents and parts search for objects, documents or parts must be made with the greatest respect for privacy.
Before search, the holder of the objects, documents or parts or the holder of information must have the opportunity to indicate their content. The holder of information is required to lend its support to the location and identification of the objects, documents or parts.
The holder of the objects, documents or parts or the information holder bears the cost of measures of constraint.
Art. 8 execution simplified when the person gives its consent to the delivery of information to the competent authority of South Africa, she informs the AFC in writing. Consent is irrevocable.
The AFC is the consent of the person concerned in writing and close the procedure by sending information to the South African authority.
If the consent only covers a part of the information, the other objects, documents or parts are obtained according to the procedure described in art. 5 to 7 above and transmitted to the competent South African authority by a final decision.
Art. 9 conclusion of the proceedings the AFC makes a reasoned final decision who shall decide on the existence of a tax fraud and on the transmission of the objects, documents or parts needed South African authority.
The decision is notified to the person concerned through its agent authorized to receive notifications.
If no authorized representative to receive notifications has been designated, the notification takes place via publication in the Federal Gazette.
After the entry into force of the final decision, the FTA may use the information provided to the South African authority.
Art. 10 right of Appeal appeal against the final decision of the AFC on the transmission of information is governed by the General provisions of the Federal procedure.
The information holder also has quality to use insofar as it argues for its own interests.
Any decision prior to the final decision, including a decision on measures of constraint, is immediately enforceable and can be attacked only in conjunction with the final decision.
Section 3 entry into force art. 11. this order comes into force on January 27, 2009.
RO 2009 867 RS 672.2 RS 0.672.911.82 State on January 27, 2009
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