Contract
76 (2009) Nr. 1
TRAC T A TENBLAD
VAN HET
K O N I N K R I J K D E R N E D E R L A N D E N
JAARGANG 2010 Nr. 2
A. TITEL
Verdrag tussen het Koninkrijk der Nederlanden en het Gemenebest van de Bahama’s inzake de uitwisseling van informatie betreffende belastingzaken;
’s-Gravenhage, 4 december 2009
B. TEKST
Agreement between the Kingdom of the Netherlands and the Commonwealth of the Bahamas for the exchange of information relating to tax matters
The Government of the Kingdom of the Netherlands and
the Government of the Commonwealth of The Bahamas,
Desiring to facilitate the exchange of information with respect to taxes;
Have agreed as follows:
Article 1
Object and scope of the Agreement
The competent authorities of the Contracting Parties shall provide assistance through exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Con- tracting Parties concerning taxes covered by this Agreement. Such infor- mation shall include information that is foreseeably relevant to the deter- mination, assessment and collection of such taxes, the recovery and enforcement of tax claims, or the investigation or prosecution of tax
matters. Information shall be exchanged in accordance with the provi- sions of this Agreement and shall be treated as confidential in the man- ner provided in Article 8. The rights and safeguards secured to persons by the laws or administrative practice of the requested Party remain applicable to the extent that they do not unduly prevent or delay effec- tive exchange of information.
Article 2
Jurisdiction
A requested Party is not obligated to provide information which is nei- ther held by its authorities nor in the possession or control of persons who are within its territorial jurisdiction.
Article 3
Taxes covered
1. The taxes which are the subject of this Agreement are existing taxes of every kind and description.
2. This Agreement shall also apply to any identical taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes. This Agreement shall also apply to any substantially similar taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes if the competent authorities of the Contracting Parties so agree. Furthermore, the taxes covered may be expanded or modified by mutual agreement of the Contracting Par- ties in the form of an exchange of letters. The competent authorities of the Contracting Parties shall notify each other of any substantial changes to the taxation and related information gathering measures covered by the Agreement within a reasonable time.
Article 4
Definitions
1. For the purposes of this Agreement, unless otherwise defined:
a) the term “Contracting Party” means the Netherlands or The Baha- mas as the context requires;
b) the term “the Netherlands” means the part of the Kingdom of the Netherlands that is situated in Europe, including its territorial seas, and any area beyond the territorial sea within which the Netherlands, in accordance with international law, exercises jurisdiction or sovereign rights with respect to the sea bed, its subsoil and its superjacent waters, and their natural resources;
c) the term “The Bahamas” means the Commonwealth of The Baha- mas, encompassing the land, the territorial waters, and in accordance with international law and the laws of The Bahamas any area outside the territorial waters inclusive of the exclusive economic zone and the sea- bed and subsoil over which The Bahamas exercises jurisdiction and sov- ereign rights for the purpose of exploration, exploitation and conserva- tion of natural resources;
d) the term “competent authority” means
(i) in the case of the Netherlands, the Minister of Finance or his authorised representative, and;
(ii) in the case of The Bahamas, the Minister of Finance or the Min- ister’s duly authorised delegate;
e) the term “person” includes an individual, a company and any other body of persons;
f) the term “company” means anybody corporate or any entity that is treated as a body corporate for tax purposes;
g) the term “publicly traded company” means any company whose principal class of shares is listed on a recognised stock exchange provid- ed its listed shares can be readily purchased or sold by the public; shares can be purchased or sold “by the public” if the purchase or sale of shares is not implicitly or explicitly restricted to a limited group of investors;
h) the term “principal class of shares” means the class or classes of shares representing a majority of the voting power and value of the com- pany;
i) the term “recognised stock exchange” means any stock exchange agreed upon by the competent authorities of the Contracting Parties;
j) the term “collective investment fund or scheme” means any pooled investment vehicle, irrespective of legal form; the term “public collec- tive investment fund or scheme” means any collective investment fund or scheme provided the units, shares or other interests in the fund or scheme can be readily purchased, sold or redeemed by the public; units, shares or other interests in the fund or scheme can be readily purchased, sold or redeemed “by the public” if the purchase, sale or redemption is not implicitly or explicitly restricted to a limited group of investors;
k) the term “tax” means any tax to which the Agreement applies;
l) the term “applicant Party” means the Contracting Party requesting information;
m) the term “requested Party” means the Contracting Party requested to provide information;
n) the term “information gathering measures” means laws and admin- istrative or judicial procedures that enable a Contracting Party to obtain and provide the requested information;
o) the term “information” means any fact, statement or record in any form whatever;
p) the term “criminal tax matters” means tax matters involving inten- tional conduct which is liable to prosecution under the criminal laws of the applicant Party;
q) the term “criminal laws” means all criminal laws designated as such under domestic law irrespective of whether contained in the tax laws, the criminal code or other statutes; and
r) the term “national” means:
(i) in relation to the Netherlands, any individual possessing the nationality of the Netherlands and any legal person, partnership or association deriving its status as such from the laws in force in the Netherlands; and
(ii) in relation to The Bahamas, any individual possessing the na- tionality or citizenship of The Bahamas; or any legal person, partnership, association or other entity deriving its status as such from the laws in force in The Bahamas.
2. As regards the application of this Agreement at any time by a Con- tracting Party, any term not defined therein shall, unless the context oth- erwise requires, have the meaning that it has at that time under the law of that Party, any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.
Article 5
Exchange of information upon request
1. The competent authority of the requested Party shall provide upon request information for the purposes referred to in Article 1. Such infor- mation shall be exchanged without regard to whether the conduct being investigated would constitute a crime under the laws of the requested Party if such conduct occurred in the requested Party.
2. If the information in the possession of the competent authority of the requested Party is not sufficient to enable it to comply with the request for information, that Party shall use all relevant information gathering measures to provide the applicant Party with the information requested, notwithstanding that the requested Party may not need such information for its own tax purposes.
3. If specifically requested by the competent authority of an applicant Party, the competent authority of the requested Party shall provide infor- mation under this Article, to the extent allowable under its domestic laws, in the form of depositions of witnesses and authenticated copies of original records.
4. Each Contracting Party shall ensure that its competent authorities for the purposes specified in Article 1 of the Agreement, have the author- ity to obtain and provide upon request:
a) information held by banks, other financial institutions, and any per- son acting in an agency or fiduciary capacity including nominees and trustees;
b) information regarding the ownership of companies, partnerships, trusts, foundations, “Anstalten” and other persons, including, within the constraints of Article 2, ownership information on all such persons in an ownership chain; in the case of trusts, information on settlors, trustees and beneficiaries; and in the case of foundations, information on found- ers, members of the foundation council and beneficiaries. Further, this Agreement does not create an obligation on the Contracting Parties to obtain or provide ownership information with respect to publicly traded companies or public collective investment funds or schemes unless such information can be obtained without giving rise to disproportionate dif- ficulties.
5. The competent authority of the applicant Party shall provide the following information to the competent authority of the requested Party when making a request for information under the Agreement to demon- strate the foreseeable relevance of the information to the request:
a) the identity of the person under examination or investigation;
b) a statement of the information sought including its nature and the form in which the applicant Party wishes to receive the information from the requested Party;
c) the tax purpose for which the information is sought;
d) grounds for believing 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;
e) to the extent known, the name and address of any person believed to be in possession of the requested information;
f) a statement that the request is in conformity with the law and administrative practices of the applicant Party, that if the requested infor- mation was within the jurisdiction of the applicant Party then the com- petent authority of the applicant Party would be able to obtain the infor- mation under the laws of the applicant Party or in the normal course of administrative practice and that it is in conformity with this Agreement; and
g) a statement that the applicant Party has pursued all means avail- able in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.
6. The competent authority of the requested Party shall acknowledge receipt of the request to the competent authority of the requesting Party, shall advise if there are any unexpected delays in obtaining the requested information, and shall use its best endeavours to forward the requested information to the requesting Party with the least possible delay.
Article 6
Tax examinations abroad
1. A Contracting Party may allow, to the extent permitted under its domestic laws, representatives of the competent authority of the other Contracting Party to enter the territory of the first-mentioned Party to interview individuals and examine records with the written consent of the persons concerned. The competent authority of the second-mentioned Party shall notify the competent authority of the first-mentioned Party of the time and place of the meeting with the individuals concerned.
2. At the request of the competent authority of one Contracting Party, the competent authority of the other Contracting Party may allow representatives of the competent authority of the first-mentioned Party to be present at the appropriate part of a tax examination in the second- mentioned Party.
3. If the request referred to in paragraph 2 is acceded to, the compe- tent authority of the Contracting Party conducting the examination shall, as soon as possible, notify the competent authority of the other Party about the time and place of the examination, the authority or official designated to carry out the examination and the procedures and condi- tions required by the first-mentioned Party for the conduct of the exami- nation. All decisions with respect to the conduct of the tax examination shall be made by the Party conducting the examination.
Article 7
Possibility of declining a request
1. The requested Party shall not be required to obtain or provide information that the applicant Party would not be able to obtain under its own laws for purposes of the administration or enforcement of its own tax laws. The competent authority of the requested Party may decline to assist where the request is not made in conformity with this Agreement.
2. The provisions of this Agreement shall not impose on a Contract- ing Party the obligation to supply information subject to legal privilege or to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process. Notwith- standing the foregoing, information of the type referred to in Article 5, paragraph 4 shall not be treated as such a secret or trade process merely because it meets the criteria in that paragraph.
3. The requested Party may decline a request for information if the disclosure of the information would be contrary to its national security or public policy (ordre public).
4. A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed.
5. The requested Party may decline a request for information if the information is requested by the applicant Party to administer or enforce a provision of the tax law of the applicant Party, or any requirement con- nected therewith, which discriminates against a national of the requested Party as compared with a national of the applicant Party in the same cir- cumstances.
Article 8
Confidentiality
1. Any information received by a Contracting Party under this Agree- ment shall be treated as confidential and may be disclosed only to per- sons or authorities (including courts and administrative bodies) in the jurisdiction of the Contracting Party concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the deter- mination of appeals in relation to, the taxes covered by this Agreement. Such persons or authorities shall use such information only for such purposes. They may disclose the information in public court proceedings
or in judicial decisions.
The information may not be disclosed to any other person or entity or authority or any other jurisdiction without the express written consent of the competent authority of the requested Party.
2. In case of exchange of information in respect of an identified or identifiable individual, the provisions of Chapter 6, in particular Article 199, of the Economic Partnership Agreement between the CARIFO- RUM States and the European Community and its Member States of 15 October 2008 shall be applied accordingly.
Article 9
Costs
Incidence of costs incurred in providing assistance shall be agreed by the Contracting Parties.
Article 10
Implementation legislation
The Contracting Parties shall enact any legislation necessary to com- ply with, and give effect to, the terms of the Agreement.
Article 11
Language
Requests for assistance and answers thereto shall be drawn up in the English language.
Article 12
Mutual agreement procedure
1. Where difficulties or doubts arise between the Contracting Parties regarding the implementation or interpretation of the Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement.
2. In addition to the agreements referred to in paragraph 1, the com- petent authorities of the Contracting Parties may mutually agree on the procedures to be used under Articles 5 and 6.
3. The competent authorities of the Contracting Parties may commu- nicate with each other directly for purposes of reaching agreement under this Article.
4. The Contracting Parties may also agree on other forms of dispute resolution.
Article 13
Entry into force
1. This Agreement shall enter into force on the first day of the sec- ond month after receipt of the last notification in which each Party has notified the other in writing of the completion of its necessary internal procedures for entry into force.
2. Upon entry into force, it shall have effect:
a) for criminal tax matters on that date, but only in respect of taxable periods beginning on or after 1 January 2004, or where there is no tax- able period, all charges to tax arising on or after 1 January 2004; and
b) for all other matters covered in Article 1 on that date, but only in respect of taxable periods beginning on or after that date, or where there is no taxable period, all charges to tax arising on or after that date.
Article 14
Termination
1. Either Contracting Party may terminate the Agreement by serving a notice of termination either through diplomatic channels or by letter to the competent authority of the other Contracting Party.
2. Such termination shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of notice of termination by the other Contracting Party.
3. Following termination of the Agreement the Contracting Parties shall remain bound by the provisions of Article 8 with respect to any information obtained under the Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed the Agreement.
DONE at The Hague on this 4th day of December 2009, in duplicate, in the English language.
For the Kingdom of the Netherlands,
X. X. XX XXXXX
For the Commonwealth of The Bahamas,
X. XXXXX XXXXXXXXX
D. PARLEMENT
Het Verdrag behoeft ingevolge artikel 91 van de Grondwet de goed- keuring van de Staten-Generaal, alvorens het Koninkrijk aan het Verdrag xxx xxxxxx gebonden.
G. INWERKINGTREDING
De bepalingen van het Verdrag zullen ingevolge zijn artikel 13, eerste lid, in xxxxxxx xxxxxx op de eerste dag van de tweede maand na de laat- ste van de data waarop de Verdragsluitende partijen elkaar er schriftelijk van in kennis hebben gesteld dat is voldaan aan de vereiste interne pro- cedures voor inwerkingtreding.
J. VERWIJZINGEN
Titel : Economische Partnerschapsovereenkomst tussen de CARIFORUM-staten, enerzijds, en de Europese Ge- meenschap en haar lidstaten, anderzijds;
Bridgetown, 15 oktober 2008
Tekst : Trb. 2009, 18 (Nederlands)
Uitgegeven de twaalfde januari 2010.
De Minister van Buitenlandse Zaken,
M. J. M. XXXXXXXX
TRB5160
ISSN 0920 - 2218
Sdu Uitgevers
’s-Gravenhage 2010