Tractatenblad 2011, 168

14 (2011) Nr. 1

A. TITEL

Verdrag tussen het Koninkrijk der Nederlanden, ten behoeve van Aruba, en het Gemenebest van de Bahama's inzake de uitwisseling van informatie betreffende belastingen;

Nassau, 8 augustus 2011

B. TEKST

Agreement between the Kingdom of the Netherlands, in respect of Aruba, and the Commonwealth of the Bahamas for the exchange of information with respect to taxes

The Government of the Kingdom of the Netherlands, in respect of Aruba,

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

• 1. 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 in the Contracting 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 8.

• 2. 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.

• 3. 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 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 Parties 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 Bahamas or the Kingdom of the Netherlands, in respect of Aruba, as the context requires;

  • b) the term “competent authority” means:

    • (i) in the case of The Bahamas, the Minister of Finance or the Minister’s duly authorised delegate;

    • (ii) in the case of Aruba, the Minister in charge of Finance or an authorised representative of the Minister;

  • c) the term “The Bahamas” means the Commonwealth of The Bahamas, 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 seabed and subsoil over which The Bahamas exercises jurisdiction and sovereign rights for the purpose of exploration, exploitation and conservation of natural resources;

  • d) 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;

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

  • f) the term “company” means any body 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 provided its listed shares can be readily purchased and 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 company;

  • 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 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;

  • 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 administrative or judicial procedures that enable a Contracting Party to obtain and provide the requested information; and

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

• 2. As regards the application of this Agreement at any time by a Contracting 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 Contracting Party, any meaning under the applicable tax laws of that Contracting Party prevailing over a meaning given to the term under other laws of that Contracting 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 territory of 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, the requested 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 Contracting Party shall ensure that its competent authority for the purposes specified in Article 1 of the 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 and beneficiaries; and in the case of foundations, information on founders, members of the foundation council and beneficiaries. 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 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 the 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 territory of 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 it 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 acknowledge receipt of the request to the competent authority of the applicant 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 applicant 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 Contracting Party to interview individuals and examine records with the written consent of the persons concerned. The competent authority of the second-mentioned Contracting Party shall notify the competent authority of the first-mentioned Contracting 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 Contracting Party to be present at the appropriate part of a tax examination in the territory of the second-mentioned Contracting Party.

• 3. If the request referred to in paragraph 2 is acceded to, the competent authority of the Contracting Party conducting the examination shall, as soon as possible, notify the competent authority of the other Contracting 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 Contracting Party for the conduct of the examination. All decisions with respect to the conduct of the tax examination shall be made by the Contracting 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 Contracting 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. Notwithstanding 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 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 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 8 Confidentiality

Any information received by a Contracting 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 Contracting 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 otherwise 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 9 Costs

Unless the competent authorities of the Contracting 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 Contracting 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 extraordinary.

Article 10 Implementation Legislation

The Contracting Parties shall enact any legislation necessary to comply 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 competent 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 communicate 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. The Contracting Parties shall notify each other in writing through diplomatic channels of the completion of their constitutional and legal procedures for the entry into force of this Agreement.

• 2. This Agreement shall enter into force on the first day of the second month following the last¹⁾ such notification. Upon entry into force, it shall have effect:

  • a) for tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the applicant Party (irrespective of whether contained in the tax laws, the criminal code or other statutes), on that date, but only in respect of taxable periods beginning on or after that date, or where there is no taxable period, for all charges to tax arising on or after 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 14 Termination

• 1. Either Contracting Party may terminate the Agreement by serving a notice of termination through diplomatic channels to 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, both 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 by their respective Governments, have signed this Agreement.

DONE at Oranjestad this 1^st day of 2011, and at Nassau Bahamas this 8^th day of August 2011, in duplicate, in the English language.

For the Kingdom of the Netherlands,

In respect of Aruba

M. E. DE MEZA

For the Commonwealth of the Bahamas

T. B. BYMONETTE

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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 artikel 13 in werking treden op de eerste dag van de tweede maand volgend op de laatste van de schriftelijke kennisgevingen langs diplomatieke weg, waarin de verdragsluitende partijen elkaar hebben verwittigd van de voltooiing van de (grond)wettelijke procedures voor de inwerkingtreding van het Verdrag.

Uitgegeven de eenentwintigste september 2011.

De Minister van Buitenlandse Zaken,

U. ROSENTHAL

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1) Redactie Tractatenblad: hier is kennelijk het woord ‘of’ weggevallen.