Australia - San Marino Tax Treaty

AGREEMENT

BETWEEN

THE GOVERNMENT OF THE REPUBLIC OF SAN MARINO

AND

THE GOVERNMENT OF AUSTRALIA

FOR

THE EXCHANGE OF INFORMATION RELATING TO TAXES

AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SAN MARINO AND THE GOVERNMENT OF AUSTRALIA FOR THE EXCHANGE OF INFORMA nON RELA TING TO TAXES

The Government of the Republic of San Marino and the Government of Australia ("the Contracting Parties"), desiring to conclude an Agreement concerning the exchange of information relating 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 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. 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.

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

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 ofTaxation~ and

(b)

in San Marino, taxes of every kind and description imposed by domestic laws.

This Agreement shall also apply to any identical or any 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 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 this Agreement.

This Agreement shall not apply to taxes imposed by states, municipalities, or other

political subdivisions, or possessions of a Contracting Party.

Article 4 Definitions

For the purposes ofthis Agreement, unless otherwise defined: (a) the term "Applicant Party" means the Contracting 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 intemationallaw, 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 ofthe continental shelf; (c) the term "San Marino" means the territory of the Republic of San Marino, including any other area within which the Republic of San Marino, in accordance with international law, exercises sovereign rights or jurisdiction; (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: (i)

in Australia, the Commissioner of Taxation or an authorised representative of

the Commissioner; (ii)

in San Marino, the Minister of Finance or an authorized representative of the

Minister.

(g) the term "Contracting Party" means the Republic of San Marino or Australia as the context requires;

(h) the tenn "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 tenn "criminal tax matters" means tax matters involving intentional conduct

which is liable to prosecution under the criminal laws of the Applicant Party;

G) the tenn "infonnation" means any fact, statement or record in any form whatever; (k) the tenn "infonnation gathering measures" means laws and administrative or judicial procedures that enable a Contracting Party to obtain and provide the requested infonnation; (I) the tenn "person" includes an individual, a company and any other body of

persons; (m) the tenn "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 tenn "publicly traded company" means any company whose principal class of shares is listed on a recognized 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; (0) the tenn "recognized stock exchange" means any stock exchange agreed upon by

the competent authorities of the Contracting Parties; (p) the tenn "Requested Party" means the Contracting Party requested to provide information; and

(q) the tenn "tax" means any tax to which the Agreement applies.

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 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

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 ifit had occurred in the territory of the Requested Party.

lfthe 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.

If specifically requested by the competent authority of the 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.

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, 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 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. 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

possession of the requested information;

(t)

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 information 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. 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, ifany, 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 infonn the Applicant Party, explaining the reason for its inability, the nature of the obstacles or the reasons for its refusal.

Article 6 Tax Examinations Abroad

A Contracting Party may allow 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 ofthe first-mentioned Party of the time and place of the meeting with the individuals concerned.

At the request of the. competent authority of a 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.

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 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 7 Possibility of Declining a Request

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.

The provisions of this Agreement shall not impose on a Contracting 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 Article 5, paragraph 4 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 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.

The Requested Party may decline a request for information if the disclosure of the

information would be contrary to public policy (ordre public).

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.

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 intormation 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

Costs

The incidence of costs incurred in providing assistance shall be agreed by the competent authorities of the Contracting Parties.

Article 10 Implementation Legislation

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

Article 11 No Prejudicial or Restrictive Measures

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 tenn "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 dual exempt and foreign tax credit systems or general infonnation 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 infonnation concerning parent companies.

Article 12 Mutual Agreement Procedure

Where difficulties or doubts arise between the Parties regarding the implementation or interpretation of this Agreement, the respective competent authorities shall endeavour to resolve the matter by mutual agreement.

In addition to the endeavours referred to in paragraph I, the competent authorities of the

Contracting Parties may mutually agree on 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.

Article 13 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. This Agreement shall enter into force on the date of the last notification, and shall thereupon have effect: (a) for criminal tax matters from 1 July 2010~ and (b) tor all other matters covered in Article 1 from 1 July 2010, for taxable periods beginning on or after the first day of January of the year next following the date on which the Agreement enters into force, or where there is no taxable period, for all charges to tax arising on or after the first day of January of the year next following the date on which the Agreement enters into force.

Article 14 Termination

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

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 the Agreement

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

Done at San Marino, in duplicate, this 4th day of march , tw'O thousand an ten.

THE GOVERNMENT OF AUSTRALIA THE GOVERNMENT OF THE REPUBLIC OF SAN MARINO

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