New Zealand - Cayman Islands Tax Treaty

2010/147

Double Tax Agreements (Cayman Islands) Order 2010 Anand Satyanand, Governor-General

Order in Council At Wellington this 8th day of June 2010 Present:

His Excellency the Governor-General in Council Pursuant to section BH 1 of the Income Tax Act 2007, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following order.

Contents 1 Title 2 Commencement 3 Commencement of agreements 4 Purposes 5 Arrangements to have effect

Schedule 1 Agreement relating to exchange of information

Double Tax Agreements (Cayman Islands) Order 2010

Schedule 2 Agreement relating to taxing rights and transfer pricing adjustments

2010/147

Title This order is the Double Tax Agreements (Cayman Islands) Order 2010.

Commencement This order comes into force on the 28th day after the date of its notification in the Gazette.

3 (1)

Commencement of agreements The agreement set out in Schedule 1 comes into force on the date referred to in Article 12 of the agreement as the date on which the agreement enters into force. The agreement set out in Schedule 2 comes into force on the date referred to in Article 10 of the agreement as the date on which the agreement enters into force.

(2)

Purposes The arrangements specified in the agreements set out in Schedules 1 and 2 have been negotiated with the Cayman Islands for 1 or more of the purposes set out in section BH 1(2) of the Income Tax Act 2007.

Arrangements to have effect The arrangements specified in each agreement set out in Schedules 1 and 2 have effect according to the respective agreement.

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Double Tax Agreements (Cayman Islands) Order 2010

Schedule 1 Agreement relating to exchange of information

Schedule 1

cls 3(1), 4, 5

Agreement between the Government of New Zealand and the Government of the Cayman Islands on the exchange of information with respect to taxes The Government of the Cayman Islands and the Government of New Zealand, Desiring to facilitate the exchange of information with respect to taxes, Have agreed as follows:

Article 1 Object and scope of this 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 those 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. The Requested Party shall 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.

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.

Schedule 1

Double Tax Agreements (Cayman Islands) Order 2010

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Article 3 Taxes covered

The existing New Zealand taxes which are the subject of this Agreement are direct taxes of every kind and description.

This Agreement shall also apply to any identical or substantially similar taxes imposed 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 maybe 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 municipalities, local authorities, or possessions of a Contracting Party.

Article 4 Definitions 1.

For the purposes of this Agreement, unless otherwise defined:

(a) the term “Cayman Islands” means the territory of the Cayman Islands and includes its territorial sea and any areas beyond its territorial sea within which sovereign rights with respect to the seabed and sub-soil and their natural resources may be exercised in accordance with international law;

(b) the term “New Zealand” means the territory of New Zealand but does not include Tokelau; it also includes any area beyond the territorial sea designated under New Zealand legislation and in accordance with international law as an area in which New Zealand may exercise sovereign rights with respect to natural resources;

(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

(e) 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;

(f) the term “company” means any body corporate or any entity that is treated as a body corporate for tax purposes; the term “competent authority” means, in the case of the Cayman Islands, the Tax Information Authority and, in the case of New Zealand, the Commissioner of Inland Revenue or an authorised representative of the Commissioner;

(g) the term “Contracting Party” means the Cayman Islands or New Zealand as the context requires; (h) the term “information” means any fact, statement or record in any form whatever; (i) the term “information gathering measures” means laws and administrative or judicial procedures that enable a Contracting Party to obtain and provide the requested information;

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

(k) 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;

(l) 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;

(m) the term “recognised stock exchange” means the New Zealand Exchange Limited, the Cayman Islands Stock 5

Exchange and any other stock exchange agreed upon by the competent authorities of the Contracting Parties;

(n) the term “Requested Party” means the Contracting Party requested to provide information; and

(o) the term “tax” means any tax to which this Agreement applies pursuant to Article 3.

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 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.

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.

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.

Each Contracting 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:

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;

(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 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.

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 of the first-mentioned Party of the time and place of the meeting with the individuals concerned.

At the request of the competent authority of one of the Contracting Parties, 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

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Double Tax Agreements (Cayman Islands) Order 2010

Schedule 1

Article 6—continued 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 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 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 imposed by a Contracting Party. 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 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 significant.

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Double Tax Agreements (Cayman Islands) Order 2010

Schedule 1

Article 10 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. A “prejudicial or restrictive measure based on harmful tax practices” is 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 Company rules, Foreign Investment Fund rules, transfer pricing rules, thin capitalisation rules, 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.

Article 11 Mutual agreement procedure

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

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

Schedule 1

Double Tax Agreements (Cayman Islands) Order 2010

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

The Contracting Parties may agree on other forms of dispute resolution.

Article 12 Entry into force

The Government of the Cayman Islands and the Government of New Zealand 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 with respect to all matters described in Article 1 for taxable periods beginning on or after 1 January following entry into force, or where there is no taxable period, for all charges to tax arising on or after 1 January following entry into force.

Article 13 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, terminate the agreement by giving to the other Contracting Party written notice of termination through the diplomatic channel. 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 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.

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Double Tax Agreements (Cayman Islands) Order 2010

Schedule 2

IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement. Done at Washington, DC, USA this 13th day of August, 2009, in duplicate in the English language. For the Government For the Government of New Zealand: of the Cayman Islands: Roy Ferguson Hon. W. McKeeva Bush New Zealand Ambassador to Leader of Government the United States Business/Premier Designate and Minister for Financial Services

Schedule 2 cls 3(2), 4, 5 Agreement relating to taxing rights and transfer pricing adjustments Agreement between the Government of New Zealand and the Government of the Cayman Islands for the allocation of taxing rights with respect to certain income of individuals and to establish a mutual agreement procedure in respect of transfer pricing adjustments The Government of the Cayman Islands and the Government of New Zealand (“the Contracting Parties”), Recognising that the Contracting Parties have concluded an Agreement on the Exchange of Information with Respect to Taxes, and Desiring to conclude an Agreement for the allocation of taxing rights with respect to certain income of individuals and to establish a mutual agreement procedure in respect of transfer pricing adjustments, Have agreed as follows:

Article 1 Persons covered This Agreement shall apply to persons who are residents of one or both of the Contracting Parties.

Schedule 2

Double Tax Agreements (Cayman Islands) Order 2010

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Article 2 Taxes covered

The existing taxes to which this Agreement shall apply are:

(a) in the Cayman Islands, any tax imposed by the Cayman Islands which is substantially similar to the existing taxes of New Zealand to which this Agreement applies; (hereinafter referred to as “Cayman Islands tax”); and (b) in New Zealand, the income tax; (hereinafter referred to as “New Zealand tax”).

This Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting Parties shall notify each other within a reasonable period of time of any substantial changes to the taxation laws covered by this Agreement.

This Agreement shall not apply to taxes imposed by, municipalities, local authorities or possessions of a Contracting Party.

Article 3 Definitions 1.

For the purposes of this Agreement, unless the context otherwise requires:

(c) the term “competent authority” means, in the case of the Cayman Islands, the Tax Information Authority and, in the case of New Zealand, the Commissioner of Taxation or an authorised representative of the Commissioner;

(d) the term “Contracting Party” means the Cayman Islands or New Zealand as the context requires;

(e) the term “national”, in relation to a Contracting Party, means any individual possessing the nationality or citizenship of that Party; (f) the term “person” includes an individual, a company and any other body of persons;

(g) the term “tax” means Cayman Islands tax or New Zealand tax as the context requires; and

(h) the term “transfer pricing adjustment” means an adjustment made by the competent authority of a Contracting Party to the profits of an enterprise as a result of applying the domestic law concerning taxes referred to in Article 2 of that Party regarding transfer pricing.

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, for the purposes of the taxes to which this Agreement applies, 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 4 Resident 1.

For the purposes of this Agreement, the term “resident of a Contracting Party” means:

(a) in the case of the Cayman Islands, any individual, who under its laws, is recognised as a resident by reason of his domicile, residence or any other criterion of a similar nature; and

(b) in the case of New Zealand, a person who is a resident of New Zealand for the purposes of New Zealand tax.

A person is not a resident of a Contracting Party for the purposes of this Agreement if the person is liable to tax in that Party in respect only of income from sources in that Party.

Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting Parties, then the person’s status shall be determined as follows:

(a) the individual shall be deemed to be a resident only of the Party in which a permanent home is available to that individual; if a permanent home is available in both Parties, or in neither of them, that individual shall be deemed to be a resident only of the Party with which the individual’s personal and economic relations are closer (centre of vital interests);

(b) if the Party in which the individual has their centre of vital interests cannot be determined, the individual shall be deemed to be a resident only of the Party of which the individual is a national;

(c) if the individual is a national of both Parties or of neither of them, the competent authorities of the Contracting Parties shall endeavour to resolve the question by mutual agreement.

Where, by reason of paragraph 1, a person other than an individual is a resident of both Contracting Parties, then it shall be deemed to be a resident only of the Party in which its place of effective management is situated.

Article 5 Pensions

Pensions, (including government pensions) annuities and other remunerations paid to an individual who is a resident of a Contracting Party in consideration of past employment shall be taxable only in that Party.

Pensions and other payments made under the social security legislation of a Contracting Party to an individual who is a resident of the other Contracting Party shall be taxable only in that other Party.

However, paragraphs 1 and 2 of this article shall not apply where the pension, payment, annuities or other remuneration is not subject to tax in the Contracting Party of which the individual is a resident.

Article 6 Government service

Salaries, wages and other similar remuneration (other than pensions) paid by the Government of a Contracting Party to an individual in respect of services rendered to that Government shall be taxable only in that Party. However, such payments shall be taxable only in the other Contracting Party if the services are rendered in that Party and the individual is a resident of that Party who: (i) is a national of that Party; or (ii) did not become a resident of that Party solely for the purpose of rendering the services.

Notwithstanding the provisions of paragraph 1, salaries, wages and other similar remuneration in respect of services rendered in connection with a business carried on by the Government referred to in paragraph 1 may be taxed in accordance with the laws of a Contracting Party.

Article 7 Students

Payments which a student or business apprentice, who is or was immediately before visiting a Contracting Party a resident of the other Contracting Party and who is temporarily present in the first-mentioned Party solely for the purpose of their education or training, receives for the purpose of their maintenance, education or training shall not be taxed in that Party, provided such payments arise from sources outside that Party.

Where a resident of a Contracting Party considers the actions of the other Contracting Party result or will result in a transfer pricing adjustment not in accordance with the arm’s length principle, the resident may, irrespective of the remedies provided by the domestic law of those Parties, present a case to the competent authority of the first-mentioned Party. The case shall be presented within three years of the first notification of the adjustment.

The competent authorities shall endeavour to resolve any difficulties or doubts arising as to the application of the arm’s length principle by a Contracting Party regarding transfer pricing adjustments. They may also communicate with each other directly for the purposes of this Article.

Article 9 Exchange of information The competent authorities of the Contracting Parties shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement. Information may be exchanged by the competent authorities for the purposes of this Article in accordance with the provisions of the Agreement between the Government of the Cayman Islands and the Government of New Zealand on the Exchange of Information with Respect to Taxes concluded by the Contracting Parties.

Article 10 Entry into force The Government of the Cayman Islands and the Government of New Zealand 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, provided the Agreement between the Government of the Cayman Islands and the Government of New Zealand on the Exchange of Information with Respect to Taxes is in force between the Contracting Parties, thereupon have effect: (a) in respect of Cayman Islands tax, on taxes chargeable for any tax year beginning on or after the 1 January following entry into force, or where there is not taxable period, for all charges to tax arising on or after 1 January following entry into force;

and (b) in respect of New Zealand tax, for any year of income beginning on or after 1 April in the calendar year following the year in which this Agreement enters into force.

Article 11 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, terminate the agreement by giving to the other Contracting Party written notice of termination through the diplomatic channel. Such termination shall become effective:

(a) in respect of Cayman Islands tax, upon termination by either of the Contracting Parties; and

(b) in respect of New Zealand tax, in the year of income beginning on or after 1 April in the calendar year next following that in which the notice of termination is given.

Notwithstanding the provisions of paragraph 1 or 2, this Agreement shall, on receipt through the diplomatic channel of written notice of termination of the Agreement on the Exchange of Information with Respect to Taxes between the Contracting Parties, terminate and cease to be effective on the first day of the month following the expiration of a period of 6 months after the date of receipt of such notice.

IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement. 19

Explanatory note

Double Tax Agreements (Cayman Islands) Order 2010

2010/147

Done at Washington, DC, USA this 13th day of August, 2009, in duplicate in the English language. For the Government For the Government of New Zealand: of the Cayman Islands: Roy Ferguson Hon. W. McKeeva Bush New Zealand Ambassador to Leader of Government the United States Business/Premier Designate and Minister for Financial Services

Rebecca Kitteridge, Clerk of the Executive Council.

Explanatory note This note is not part of the order, but is intended to indicate its general effect. This order, which comes into force on the 28th day after the date of its notification in the Gazette, gives effect to the following agreements between New Zealand and the Cayman Islands: • an agreement on the exchange of information for the purpose of administering and enforcing domestic law relating to taxes: • an agreement for the allocation of taxing rights with respect to certain income of individuals and to establish a mutual agreement procedure in respect of transfer pricing adjustments. Each agreement comes into force on the date of the last notification by the parties that domestic procedures for bringing the respective agreement into force have been completed. Once they have entered into force, the agreements have effect in relation to the exchange of information relating to taxes, the allocation of taxing rights, and in respect of transfer pricing adjustments, despite anything in the Income Tax Act 2007, any other Inland Revenue Act, the Official Information Act 1982, or the Privacy Act 1993.

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Double Tax Agreements (Cayman Islands) Order 2010

Issued under the authority of the Acts and Regulations Publication Act 1989. Date of notification in Gazette: 10 June 2010. This order is administered by the Inland Revenue Department.

Wellington, New Zealand: Published under the authority of the New Zealand Government—2010

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