Australia - Dominica Tax Treaty
AGREEMENT
BETWEEN
THE GOVERNMENT OF AUSTRALIA
AND
THE GOVERNMENT OF THE COMMONWEALTH OF DOMINICA
ON THE EXCHANGE OF INFORMATION WITH RESPECT TO TAXES AND TAX MATTERS
Whereas the Government of Australia and the Government of the Commonwealth of Dominica (“the Contracting Parties”) recognize the need for cooperation and the exchange of information in criminal and civil tax matters;
Whereas the Contracting Parties wish to enhance and facilitate the terms and conditions governing the exchange of information with respect to taxes and tax matters;
Now, therefore, the Contracting Parties desiring to conclude an Agreement, which contains obligations on the part of the Contracting Parties only, to facilitate the exchange of information with respect to taxes and tax matters have agreed as follows:
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ARTICLE 1 SCOPE OF AGREEMENT The Contracting Parties, through their competent authorities, shall provide assistance through exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Contracting Parties concerning the taxes and the tax matters 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.
ARTICLE 2 JURISDICTION
- To enable the provisions of this Agreement to be implemented, information shall be provided in accordance with this Agreement by the competent authority of the Requested Party without regard to whether the person to whom the information relates is, or whether the information is held by, a resident or national or citizen of a Contracting Party.
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.
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ARTICLE 3 TAXES COVERED 1.
The existing taxes which are the subject of this Agreement are:
(a)
in the case of Australia, taxes of every kind and description imposed under federal laws administered by the Commissioner of Taxation; and
(b)
in the case of the Commonwealth of Dominica taxes of every kind and description.
This Agreement shall also apply to any identical or substantially similar taxes
imposed by either party after the date of signature of this 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 Contracting Parties. 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.
This Agreement shall not apply to taxes imposed by states, municipalities, or
other political subdivisions, or possessions of a Contracting Party.
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ARTICLE 4 DEFINITIONS 1.
In this Agreement, unless otherwise defined:
(a)
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 or the seabed and subsoil of the continental shelf;
(b)
the term "Commonwealth of Dominica" means the island of Dominica, including the territorial waters thereof, the sea-bed, its subsoil and their natural resources, and any other area in the sea and in the air within which the Commonwealth of Dominica, in accordance with international law, exercises its sovereign rights or its jurisdiction;
(c)
the term "collective investment fund or scheme" means any pooled investment vehicle irrespective of legal form;
(d)
the term "company" means any body corporate or any entity that is treated as a body corporate for tax purposes;
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(e)
the term "competent authority" means
(i)
in the case of Australia the Commissioner of Taxation or an authorised representative of the Commissioner; and
(ii)
in the case of the Commonwealth of Dominica, the Minister for Finance or their authorised representative;
(f)
the term "Contracting Party" means Australia or the Commonwealth of Dominica as the context requires;
(g)
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 laws;
(h)
the term "criminal tax matters" means tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the Requesting Party;
(i)
the term "information" means any fact, statement, document or record in any form whatever;
(j)
the term "information gathering measures" means laws, regulations and administrative or judicial procedures that enable a Contracting Party to obtain and provide the requested information;
(k)
the term "national" means
(i)
in the case of Australia, any person who is an Australian citizen; and
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(ii)
in the case of the Commonwealth of Dominica, any citizen and any legal person, partnership, company, trust, estate, association or any other entity deriving its status as such from the laws in force in the Commonwealth of Dominica;
(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 "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;
(o)
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 restricted to a limited group of investors;
(p)
the term "recognised stock exchange" means any stock exchange agreed upon by the competent authorities of the Contracting Parties;
(q)
the term "Requested Party" means the party to this Agreement which is requested to provide or has provided information in response to a request;
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(r)
the term "Requesting Party" means the party to this Agreement submitting a request for or having received information from the Requested Party; and
(s)
the term "tax" means any tax covered by this Agreement.
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.
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ARTICLE 5 EXCHANGE OF INFORMATION UPON REQUEST 1.
The competent authority of the Requested Party shall provide upon request in
writing by the Requesting Party, information for the purposes referred to in Article 1. Such information shall be exchanged without regard to whether the Requested Party needs such information for its own tax purposes or the conduct being investigated would constitute a crime under the laws of the Requested Party if it occurred in the territory of the Requested Party. The competent authority of the Requesting Party shall only make a request for information pursuant to this Article when it is unable to obtain the requested information by other means, except where recourse to such means would give rise to disproportionate difficulty.
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 Requesting Party with the information requested, notwithstanding that the Requested Party may not need such information for its own tax purposes.
If specifically requested by the competent authority of the Requesting 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.
Each Contracting Party shall ensure that its competent authority, for the purposes
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;
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(b)
information regarding the legal and beneficial 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, and equivalent information in the case of entities that are neither trusts nor foundations.
Notwithstanding the preceding paragraphs, this Agreement does not create an
obligation on the Contracting Parties to obtain or provide:
(a)
ownership information with respect to public traded companies or public
collective investment funds or schemes, unless such information can be obtained without giving rise to disproportionate difficulties.
The competent authority of the Requesting Party shall provide the following
information to the competent authority of the Requested Party when making a request for information under this Agreement in order 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 the nature and type of information requested, and the form in which the Requesting 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; 10
(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 this Agreement and the law and administrative practices of the Requesting Party, that if the requested information was within the jurisdiction of the Requesting Party then the competent authority of the Requesting Party would be able to obtain the information under the laws of the Requesting Party or in the normal course of administrative practice; and
(g)
a statement that the Requesting Party has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.
The competent authority of the Requested Party shall forward the requested
information as promptly as possible to the competent authority of the Requesting Party. To ensure a prompt response, the competent authority of the Requested Party shall confirm the receipt of a request in writing to the competent authority of the Requesting Party and shall notify the competent authority of the Requesting Party of any deficiencies in the request within 60 days of receipt of the request.
If the competent authority of the Requested Party has been unable to obtain and
provide the information requested within 90 days of receipt of the request, or if obstacles are encountered in furnishing the information, or if the competent authority of the Requested Party refuses to provide the information, it shall immediately inform the competent authority of the Requesting Party in writing, explaining the reasons for its inability to obtain and provide the information, or the obstacles encountered or the reasons for its refusal.
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ARTICLE 6 TAX EXAMINATIONS OR INVESTIGATIONS ABROAD 1.
The Requested Party may, to the extent permitted under its domestic laws, and
following reasonable notice from the Requesting Party, allow representatives of the competent authority of the Requesting Party to enter the territory of the Requested Party in connection with a request to interview persons and examine records with the written consent of the persons concerned. The competent authority of the Requesting Party shall notify the competent authority of the Requested Party of the time and place of the meeting with the persons concerned.
At the request of the competent authority of the Requesting Party, the competent
authority of the Requested Party may, in accordance with its domestic laws, permit representatives of the competent authority of the Requesting Party to be present at the appropriate part of a tax examination in the territory of the Requested Party.
If the request referred to in Paragraph 2 of this Article is granted, the competent
authority of the Requested Party conducting the examination shall, as soon as possible, notify the competent authority of the Requesting Party of the time and place of the examination, the authority or person authorised to carry out the examination, and the procedures and conditions required by the Requested Party for the conduct of the examination. All decisions regarding the conduct of the examination shall be made by the Requested Party conducting the examination in accordance with its domestic laws.
ARTICLE 7 POSSIBILITY OF DECLINING A REQUEST 1.
The competent authority of the Requested Party may decline a request for
information where:
(a)
the request is not made in conformity with this Agreement;
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(b)
the Requesting Party has not pursued all means available in its own territory to obtain the information, except where recourse to such means would give rise to disproportionate difficulties; or
(c)
the disclosure of the information requested would be contrary to public policy.
The provisions of this Agreement shall not impose upon a Contracting Party, any
obligation to provide information which would disclose any trade, business, industrial, commercial or professional secret or trade process. Notwithstanding the foregoing, the information described 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.
The provisions of this Agreement shall not impose on a Contracting Party the
obligation to obtain or provide information which would reveal confidential communications between a client and an attorney, solicitor or barrister or other admitted legal representatives 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.
A request for information shall not be refused on the ground that the tax liability
giving rise to the request is disputed by the person under examination or investigation.
The Requested Party shall not be required to obtain or provide information that
the Requesting Party would not be able to obtain under its own laws for purposes of the administration or enforcement of its own tax laws.
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7.
The Requested Party may decline a request for information if the information is
requested by the Requesting Party to administer or enforce a provision of the tax law of the Requesting Party, or any requirement connected therewith, which discriminates against a national of the Requested Party as compared with a national of the Requesting 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 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 SAFEGUARDS The rights and safeguards secured to persons by the laws or administrative practice of the Requested Party remain applicable. The Requested State will use its best endeavours to ensure that any such rights and safeguards are not applied in a manner that unduly prevents or delays effective exchange of information.
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ARTICLE 10 COSTS Unless the competent authorities of the Contracting Parties otherwise agree, ordinary costs incurred in providing assistance shall be borne by the Requested State, 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 Requesting 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 Requesting 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 Contracting Parties shall enact any legislation necessary to comply with, and give effect to, the terms of this Agreement.
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ARTICLE 12 NO PREJUDICIAL OR RESTRICTIVE MEASURES 1.
Neither of the Contracting Parties shall apply prejudicial or restrictive measures
based on harmful tax practices to residents or nationals of either Contracting Party so long as this Agreement is in force and effective.
For the purposes of this Article, "prejudicial or restrictive measure based on
harmful tax practices" means a measure applied by one Contracting Party to residents or nationals of either Contracting Party on the basis that the other Contracting 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.
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.
A " prejudicial or restrictive measure" does not include generally applicable
measures, applied by either Contracting Party, such as controlled foreign companies, foreign investment funds, transferor trusts, Transfer Pricing, Thin Capitalisation, operation of the relief from double taxation provisions or general information reporting rules that relate to the disclosure of information from other countries or jurisdictions, or transactions with such countries or jurisdictions, such as record keeping requirements imposed on foreign owned subsidiaries to ensure access to information concerning parent companies.
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ARTICLE 13 MUTUAL AGREEMENT PROCEDURE 1.
Where difficulties or doubts arise between the Contracting Parties regarding the
implementation or interpretation of this Agreement, the competent authorities shall use their best endeavours to resolve the matter by mutual agreement.
In addition to the endeavours referred to in Paragraph 1 of this Article, the
competent authorities of the Contracting Parties may mutually agree the procedures to be used under Articles 5 and 6.
The competent authorities of the Contracting Parties may communicate with each
other directly for the purposes of this Article.
The Contracting Parties may also agree on other forms of dispute resolution.
ARTICLE 14 ENTRY INTO FORCE The Contracting 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. The Agreement shall enter into force on the date of the later of the notifications. Upon entry into force, it shall have effect:
(a)
with respect to criminal tax matters from 1 July 2010; and
(b)
for all other matters covered in Article 1 from 1 July 2010, 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.
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ARTICLE 15 TERMINATION 1.
This Agreement shall remain in force until terminated by either Contracting Party
by serving a notice of termination in writing through the diplomatic channel.
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.
Notwithstanding any termination of this Agreement, the Contracting Parties shall
remain bound by the provisions of Article 8 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 [ [
], [ ], 200[
] this [
] day of
], in duplicate.
FOR THE GOVERNMENT OF
FOR THE GOVERNMENT OF THE COMMONWEALTH OF DOMINICA
AUSTRALIA
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