Tractatenblad 2010, 45

82 (2009) Nr. 1

A. TITEL

Verdrag tussen het Koninkrijk der Nederlanden, ten behoeve van Aruba, en de Regering van Australië inzake de uitwisseling van informatie betreffende belastingen;

Canberra, 16 december 2009

B. TEKST

Agreement between the Kingdom of the Netherlands, in respect of Aruba, and the Government of Australia on the Exchange of Information with respect to Taxes

The Kingdom of the Netherlands, in respect of Aruba,

and

the Government of Australia (“the Parties”),

Desiring to facilitate the exchange of information with respect to taxes,

Have agreed as follows:

Article 1 Object and scope of the agreement

• 1. The competent authorities of the Parties shall provide assistance through exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Parties concerning taxes covered by this Agreement. Such information shall include information that is foreseeably relevant to the determination, 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 provisions of this Agreement and shall be treated as confidential in the manner provided in Article 9. 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 effective exchange of information.

• 2. As regards the Kingdom of the Netherlands, this Agreement shall apply only to Aruba.

Article 2 Jurisdiction

A Requested Party is not obligated to provide information which is neither held by its authorities nor in the possession or control of persons who are within its territorial jurisdiction.

Article 3 Taxes covered

• 1. The existing taxes which are the subject of this Agreement are:

  • a) in Australia, taxes of every kind and description imposed under federal laws administered by the Commissioner of Taxation; and

  • b) in Aruba, taxes of every kind and description imposed under national tax laws administered by the Tax Inspector.

• 2. This Agreement shall also apply to any identical or substantially similar taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes. The Agreement shall also apply to such other taxes as may be agreed in an exchange of letters between the Parties. The competent authorities of the Parties shall notify each other of any substantial changes to the taxation and related information gathering measures covered by the Agreement.

• 3. This Agreement shall not apply to taxes imposed by states, municipalities, or other political subdivisions, or possessions of a Party.

Article 4 Definitions

• 1. For the purposes of this Agreement, unless otherwise defined:

  • a) the term “Applicant Party” means the Party requesting information;

  • b) the term “Australia”, when used in a geographical sense, excludes all external territories other than:

    • (i) the Territory of Norfolk Island;

    • (ii) the Territory of Christmas Island;

    • (iii) the Territory of Cocos (Keeling) Islands;

    • (iv) the Territory of Ashmore and Cartier Islands;

    • (v) the Territory of Heard Island and McDonald Islands; and

    • (vi) the Coral Sea Islands Territory,

    and includes any area adjacent to the territorial limits of Australia (including the Territories specified in this subparagraph) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploration for or exploitation of any of the natural resources of the exclusive economic zone and the seabed and subsoil of the continental shelf;

  • c) the term “Aruba” means that part of the Kingdom of the Netherlands that is situated in the Caribbean area and consisting of the Island of Aruba;

  • d) the term “collective investment fund or scheme” means any pooled investment vehicle, irrespective of legal form. The term “public collective 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;

  • e) the term “company” means any body corporate or any entity that is treated as a body corporate for tax purposes;

  • f) the term “competent authority” means in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of Aruba, the Minister of Finance and Economic Affairs or an authorised representative of the Minister;

  • g) the term “Party” means Australia or the Kingdom of the Netherlands in respect of Aruba as the context requires;

  • h) 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;

  • i) the term “criminal tax matters” means tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the Applicant Party;

  • j) the term “information” means any fact, statement or record in any form whatever;

  • k) the term “information gathering measures” means laws and administrative or judicial procedures that enable a Party to obtain and provide the requested information;

  • l) the term “person” includes an individual, a company and any other body of persons;

  • m) the term “principal class of shares” means the class or classes of shares representing a majority of the voting power and value of the company;

  • n) the term “publicly traded company” means any company whose principal class of shares is listed on a recognised stock exchange provided 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;

  • o) the term “recognised stock exchange” means any stock exchange agreed upon by the competent authorities of the Parties;

  • p) the term “Requested Party” means the Party requested to provide information; and

  • q) the term “tax” means any tax to which this Agreement applies.

• 2. As regards the application of this Agreement at any time by a Party, any term not defined therein shall, unless the context otherwise 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 information 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 information 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 Party shall ensure that its competent authority for the purposes specified in Article 1 of this Agreement, has the authority to obtain and provide upon request:

  • a) information held by banks, other financial institutions, and any person 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, beneficiaries and protectors; and in the case of foundations, information on founders, members of the foundation council and beneficiaries. Further, this Agreement does not create an obligation on the 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 difficulties.

• 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 this Agreement to demonstrate 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) the 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 information was within the jurisdiction of the Applicant Party then the competent authority of the Applicant Party would be able to obtain the information under the laws of the Applicant Party or in the normal course of administrative practice and that the request is in conformity with this Agreement; and

  • g) a statement that the Applicant Party has pursued all means available 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 forward the requested information as promptly as possible to the Applicant Party. To ensure a prompt response, the competent authority of the Requested Party shall:

  • a) confirm receipt of a request in writing to the competent authority of the Applicant Party and shall notify the competent authority of the Applicant Party of deficiencies in the request, if any, within 60 days of the receipt of the request; and

  • b) if the competent authority of the Requested Party has been unable to obtain and provide the information within 90 days of receipt of the request, including if it encounters obstacles in furnishing the information or it refuses to furnish the information, it shall immediately inform the Applicant Party, explaining the reason for its inability, the nature of the obstacles or the reasons for its refusal.

Article 6 Spontaneous exchange of information

The Parties may forward to each other, without prior request, information of which they have knowledge.

Article 7 Tax examinations abroad

• 1. A Party may allow representatives of the competent authority of the other 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 of the Parties, the competent authority of the other 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 competent authority of the 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 conditions required by the first-mentioned Party for the conduct of the examination. All decisions with respect to the conduct of the tax examination shall be made by the Party conducting the examination.

Article 8 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 Party the obligation to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process. Notwithstanding the foregoing, information of the type referred to in paragraph 4 of Article 5 shall not be treated as such a secret or trade process merely because it meets the criteria in that paragraph.

• 3. The provisions of this Agreement shall not impose on a Party the obligation to obtain or provide information, which would reveal confidential communications between a client and an attorney, solicitor or other admitted legal representative where such communications are:

  • a) produced for the purposes of seeking or providing legal advice; or

  • b) produced for the purposes of use in existing or contemplated legal proceedings.

• 4. The Requested Party may decline a request for information if the disclosure of the information would be contrary to public policy (ordre public).

• 5. A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed by the taxpayer.

• 6. 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 connected therewith, which discriminates against a national of the Requested Party as compared with a national of the Applicant Party in the same circumstances.

Article 9 Confidentiality

Any information received by a Party under this Agreement shall be treated as confidential and may be disclosed only to persons or authorities (including courts and administrative bodies) in the jurisdiction of the Party concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination 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.

Article 10 Costs

Unless the competent authorities of the Parties otherwise agree, ordinary costs incurred in providing assistance shall be borne by the Requested Party, and extraordinary costs incurred in providing assistance (including reasonable costs of engaging external advisors in connection with litigation or otherwise) shall be borne by the Applicant Party. At the request of either Party, the competent authorities shall consult as necessary with regard to this Article, and in particular the competent authority of the Requested Party shall consult with the competent authority of the Applicant Party in advance if the costs of providing information with respect to a specific request are expected to be significant.

Article 11 Implementation legislation

The Parties shall enact any legislation necessary to comply with, and give effect to, the terms of this Agreement.

Article 12 No prejudicial or restrictive measures

• 1. Neither of the Parties shall apply prejudicial or restrictive measures based on harmful tax practices to residents or nationals of either Party so long as this Agreement is in force and effective.

• 2. A “prejudicial or restrictive measure based on harmful tax practices” is a measure applied by one Party to residents or nationals of either Party on the basis that the other Party does not engage in effective exchange of information and/or because it lacks transparency in the operation of its laws, regulations or administrative practices, or on the basis of no or nominal taxes and one of the preceding criteria.

• 3. Without limiting the generality of paragraph 2 the term “prejudicial or restrictive measure” includes the denial of a deduction, credit or exemption, the imposition of a tax, charge or levy, or special reporting requirements.

Article 13 Mutual agreement procedure

• 1. The competent authorities of the Parties shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement.

• 2. In addition to the agreements referred to in paragraph 1, the competent authorities of the Parties may mutually determine the procedures to be used under Articles 5, 6 and 7.

• 3. The competent authorities of the Parties may communicate with each other directly for the purposes of this Article.

• 4. The Parties may also agree on other forms of dispute resolution.

Article 14 Entry into force

The Parties shall notify each other in writing through the diplomatic channel of the completion of their constitutional and legal procedures for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and shall thereupon have effect:

• a) for criminal tax matters on that date; 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 15 Termination

• 1. This Agreement shall continue in effect indefinitely, but either of the Parties may, after the expiration of 3 years from the date of its entry into force, give to the other Party through the diplomatic channel written notice of termination.

• 2. Such termination shall become effective on the first day of the month following the expiration of a period of 6 months after the date of receipt of notice of termination by the other Party.

• 3. Notwithstanding any termination of this Agreement, the Parties shall remain bound by the provisions of Article 9 with respect to any information obtained under this Agreement.

IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.

DONE at Canberra, this 16^th day of December 2009, in duplicate.

For the Kingdom of the Netherlands, in respect of Aruba:

C. W. ANDREAE

For the Government of Australia:

SENATOR NICK SHERRY

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D. PARLEMENT

Het Verdrag behoeft ingevolge artikel 91 van de Grondwet de goedkeuring van de Staten-Generaal, alvorens het Koninkrijk aan het Verdrag kan worden gebonden.

G. INWERKINGTREDING

De bepalingen van het Verdrag zullen ingevolge zijn artikel 14 in werking treden op de datum van de laatste van de schriftelijke kennisgevingen langs diplomatieke weg, waarin de partijen elkaar hebben verwittigd van de voltooiing van de constitutionele en wettelijke procedures voor de inwerkingtreding van het Verdrag.

J. VERWIJZINGEN

Verbanden

Het Verdrag wordt aangevuld door:

Titel	:	Verdrag tussen het Koninkrijk der Nederlanden, ten behoeve van Aruba, en de Regering van Australië inzake de toewijzing van heffingsrechten met betrekking tot bepaalde inkomsten van natuurlijke personen en tot het vaststellen van een regeling voor onderling overleg ter zake van wijzigingen van verrekenprijzen; Canberra, 16 december 2009
Tekst	:	Trb. 2010, 46 (Engels)

Overige verwijzingen

Titel	:	Verdrag nopens de Organisatie voor Economische Samenwerking en Ontwikkeling; Parijs, 14 december 1960
Tekst	:	Trb. 1961, 42 (Frans en Engels) Trb. 1961, 60 (vertaling)
Laatste Trb.	:	Trb. 1994, 193

Uitgegeven de vijfde februari 2010.

De Minister van Buitenlandse Zaken,

M. J. M. VERHAGEN