Poland - Bermuda Tax Treaty

AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF POLAND AND THE GOVERNMENT OF BERMUDA (AS AUTHORISED BY THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND) FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS

The Government of the Republic of Poland and the Government of Bermuda, desiring to exchange information with respect to taxes; Have agreed as follows:

Article 1 Object and Scope of the Agreement

The com petent 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, including information that is foreseeably relevant to the determination, assessment and collection of tax wit h respect to persons subject to such taxes, the recovery and enforcement of tax claims, or the investigation of tax matters ar prosecution of criminal tax matters in relation to such persons. Information shali be exchanged in accordance with the provisions of this Agreement and shall be treated as canfidential 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.

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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.

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Article 3

Taxes Covered

1. This Agreement sha!1 apply to the following taxes imposed by the Contracting Parties: a) in the case of Poland: i) the personal income tax; ii) the corporate income tax; b) in the case of Bermuda: Direct taxes of every kind and description.
2. This Agreement shall apply also to any identical ar substantially similar taxes imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting Parties shall notify each other of any substantial changes in their laws which may effect the obligations of that Contracting Party pursuant to this Agreement.

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Article 4 Definitions

1. In this Agreement the term: a) "Poland" means the Republic of Poland and, when used in a geographical sense, means the territory of the Republic of Poland, and any area adjacent to the territorial waters of the Republic of Poland within which, under the laws of Poland and in accordance with international law, the rights of Poland with respect to the exploration and exploitation of the natural resources of the seabed and its sub-soil may be exercised; b) "Bermuda" means the islands of Bermuda; c) "Contracting Party" means Poland or Bermuda, as the context requires; d) "com petent authority" means: i)

in the case of Poland, the Minister of Finance representative;

or his authorized

ii) in the case of Bermuda, the Minister of Finance or his authorized representative; e) "person" persans; f)

includes

an individual,

a company

and any other body of

"company" means any body corporate ar any entity that is treated as a body corporate for tax purposes;

g) "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 ar sale of shares is not implicitly or explicitly restricted to a limited group of investors; h) "principal class of shares" means the class ar classes of shares representing a majority of the voting power and value of the company; i)

"recognized stock exchange" means any stock exchange agreed upon by the competent authorities of the Contracting Parties;

j)

"public collective investment fund or scheme" means any collective investment fund or scheme provided the units, shares or other interests is not implicitly or explicitly restricted to a limited group of investors;

k) "tax" means any tax to which the Agreement applies; I)

"applicant Party" means the Contracting Party requesting information; S

.--

I

.

m) "requested Party" means the Contracting information;

Party requested

to provide

n) "information gathering measures" means laws and administrative or judicial procedures that enable a Contracting Party to obtain and provide the requested information; o) "information" means any fact, statement or record in any form whatever; p) "crirninal tax matters" means tax matters involving intentional eonduet whether before or after the entry into force of this Agreement which is liable to prosecution under the criminal laws of the requesting Party and includes all cases where a person has been notified that proceedings concerning those matters have been initiated against that person; q) "criminal Iaws" means ali criminallaws designated as such under domestic law irrespective of whether such are contained in the tax laws, the criminal code ar other statutes. 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 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.

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Article 5 Exchange of Information Upon Request

1. The competent authority of the requested Party shall provide upon request by the eompetent authority of the applieant Party information for the purposes referred to in Article 1. Sueh information shal! be exehanged without regard to whether the requested Party needs sueh information for its own tax purposes ar the eonduet being investigated would eonstitute a erime under the laws of the requested Party if it had oeeurred in the territary 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, that Party shall use al! relevant information gathering measures to provide the competent authority of 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 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.
4. Each Contracting Party shall ensure that its competent authorities for the purposes specified in Article 1 of the Agreement, have the authority to obtain and provide upon request: a) information held by banks, other finaneial institutions, and any person, including nominees and trustees, acting in an agency ar fidueiary capacity; b) information regarding the legaj and beneficial ownership of companies, partnerships, publie collective investment schemes, trusts, foundations and other persons, including information on all such persons in an ownership ehain, in partieular: i) in the case of public collective investment funds ar sehemes, information on shares, units and other interests; ii) in the case of foundations, information on founders, foundation eouncil and beneficiaries;

members of the

iii) in the ease of trusts, information on settlors, trustees, protectors and benefieiaries; iv) in the case of persans that are neither collective investment sehemes, trusts or foundations, equivalent information to the information in subparagraphs i) to iii).

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I:

This Agreement does not ereate an obligationfor a ContraetingParty to o:l

I or provide ownership information with respect to publicly traded companies ar public collective investment funds or schemes, unless such information can be obtained without giving rise to disproportionate difficulties. 6. 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 Agreement to demonstrate the foreseeable relevance of the information to the request: a) the identity of the person under examination or investigation; b) the period for which the information is requested; c) the nature of the information requested; d) the tax purpose for which the information is sought; 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 normai course of administrative practice and that it ls in conformity wit h this Agreement;

g) a statement that the applicant Party has pursued all means available in its own territery to obtain the information, except those that would give rise to disproportionate difficulties. 7. The competent authority of the requested Party shall forward the requested information as soon as reasonably possible to the applicant Party. To ensure a prompt response, the competent authority of the requested Party shall: a) confirm receipt of a request in writing to the competent authority of the applicant Party and shall notify the competent authority of the applicant Party of deficiencies in the request, if any, within 60 days of the receipt of the request, and b) if the competent authority of the requested Party has been unable to obtain and provide the information within 90 days of receipt of the request, including if it encounters obstacles in furnishing the information or it refuses to furnish the information, it shall immediately inform the applicant Party, explaining the reason for its inability, the nature of the obstacles or the reasons for its refusal.

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Article 6 Tax Examinations Abroad

1. With reasonable notice the applicant Party may request that the requested Party allow representatives ot the competent authority ot the applicant Party to enter the territary of the requested Party, to the extent permitted under its domestic laws, to interview individuals and examine records. The competent authority of the applicant Party shall notify the competent authority of the requested Party ot the time and place ot the meeting with the individuals concerned.
2. At the competent competent territory ot

request ot the competent authority ot the applicant Party, the authority ot the requested Party may allow representatives ot the authority of the applicant Party to attend a tax examination in the the requested Party.

3. If the request referred to in paragraph 2 is granted, the competent authority of the requested Party conducting the examination shall, as soo n as possible, notify the competent authority of the applicant Party of the time and place of the examination, the authority or person authorized to carry out the examination and the procedures and conditions required by the requested Party for the eonduet of the examination. Ali decisions regarding the eonduet of the tax examination shall be made by the requested Party conducting the examination.

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Article 7 Possibility of Declining a Request

1. The competent authority of the Requested Party may decline to assist: a) where the request is not mad e in conformity with this Agreement; b) where 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 difficulty; or c) where the disclosure of the information requested would be contrary to pub lic policy.
2. This Agreement shall not impose upon a Requested Party any obligation to provide items subject to any trade, business, industrial, commercial or professional secret or trade process, provided that information described in paragraph 4 of Article 5 shall not by reason of that fact alone be treated as such a secret or trade process.
3. 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 c1ient and an attorney, solicitor or other admitted legaj representative where such communications are: a) produced for the purposes of seeking or providing legaj advice; or b) produced for the purposes proceedings.

of use in existing

or contemplated

legaj

4. A request for information shall not be refused on the ground that the tax cia im giving rise to the request is disputed.
5. The Requested Party shall not be required to obtain and provide information which, if the requested information was within the jurisdiction of the Requesting Party, the competent authority of the Requesting Party would not be able to obtain under its laws or in the normai course of administrative practice.
6. 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.

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Article 8 Confidentiality

1. Any information provided and received by the competent authorities of the Contracting Parties shall be kept confidential.
2. Information shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the purposes specified in the Article 1, and used by such persons or authorities only for such purposes, the determination of any appeal. For these purposes, information may be disclosed in public court proceedings or in judicial decisions.
3. Information may not be used for any purpose other than for the purposes stated in Article 1 without the express written consent of the competent authority of the requested Party.
4. The information provided to a applicant Party under this Agreement may not be disclosed to any other jurisdiction, without the express written consent of the Competent Authority of the requested Party.

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Article 9 Costs

Unless the com petent authorities of the Parties otherwise agree, ordinary costs incurred in providing assistance shall be borne by the requested Party, and extraordinary costs incurred in providing assistance (including costs of engaging external advisors in connection with litigation or otherwise necessary to comply with the request) shall be borne by the applicant Party. The respective com petent authorities shall consult periodically with regard to this Article, and in particular the competent authority of the requested Party shall consult with the com petent authority of the applicant Party if the costs of providing information with respect to a specific request are expected to be significant.

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Article 10 Language

Requests for assistance, communication between the As regards other documents shall consuit whether and to indeed required.

the responses thereto and any other written competent authorities shall be drawn up in English. or files to be provided, the competent authorities what extent translation into the English language is

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Article 11 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 use their best efforts 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, 6 and 9.
3. The Contracting Parties shall endeavour to agree on other forms of dispute resolution should this become necessary.
4. Formai communications, including requests for information, made in connection with or pursuant to the provision of this Agreement will be in writing directly to the competent authority of the other Contracting Party at such address as may be notified by one Contracting Party to the other. Any subsequent communications .regarding requests for information will be either in writing or verbally, whichever is most practical, between the aforementioned competent authorities or their authorized representatives.

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Article 12 Entry into Force

1. Each of the Contracting Parties shal! notify in writing to the other the completion of the procedures required by its law for the bringing into force of this Agreement.
2. This Agreement shall enter into force in three months after the date of receiving the later of these notifications and shall thereupon have effect for requests made on or after the date of entry into farce: a) for criminal tax matters on that date; and b) for ali other matters covered in Article 1 on that date but in respect of taxable periods beginning on or after that date, or where there is no taxable period, al! charges arising on or after that date.

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Article 13 Terminałion

1. This Agreement is concluded tor unspecitied time. It may be terminated only by written notitication thraugh diplomatic channels by either Contracting Party; in such a case it shall cease to be in torce after three months tram after the date ot receipt ot the notification by the other Contracting Party.
2. Ali requests received by the Contracting Parties up to effective termination will be dealt in accordance wit h the terms of this Agreement.

day of

3. If the Agreement is terminated the Contracting Parties shall remain bound by the pravisions ot Article 8 with respect to any information obtained under the Agreement.

In witness whereo'f the uridersigned, Agreement.

Dane

in

~ovefJ4bt;f

duly authorised thereto, have signed this

/..prtd.oyt

26

dU~licate at this day of in the Polish and English languages, both texts being equally

20 {

r

authentic.

For the Govern t Republic ot Poland:

For the Government of Bermuda:

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MEMORANDUM OF UNDERSTANDING CONCERNING

THE INTERPRETATION AND APPLlCATION OF THE AGREEMENT

BETWEEN THE GOVERNMENT OF THE REPUBLIC OF POLAND AND THE GOVERNMENT OF BERMUDA FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS

The Government of the Republic of Poland and the Government of Bermuda, desiring to facilitate the exchange of information relating to tax matters (the Agreement), have reached the following understandings:

1. Pursuant to Article 1 of the Agreement it is mutually agreed that in this Article the term "relevant" includes the standard for the term "foreseeably relevant" and "foreseeable relevance" as explained in paragraph numbered 4 of the 2002 OECD Model Agreement on Exchange of Information on Tax Matters Commentary on Article 1 of that Model.
2. Wit h reference to Article 5 of the Agreement, it is understood that Parties may not require certain records to be kept for longer than a specified period under the domestic law, consistent with international standards, however the com petent authority of the requested Party will, nevertheless, use al! relevant infarmation-gathering measures to provide any infarmation requested, where that information is, in fact, kept.
3. Pursuant to Article 9 of the Agreement the following is mutually agreed: (a) Ordinary costs will normally cover internal administration costs of the competent authority and any minor external costs such as the costs of couriers. (b) Ali reasonable costs incurred by third parties in complying with the request for exchange of information are considered extraordinary costs and will be borne by the requesting Party. Examples of extraordinary costs include, but are not limited to, the following: fees charged for staff employed by third parties in assisting with the request; (ii) fees charged by third parties for carrying out research; (iii) fees charged by third parties for copying documents; (iv) costs of engaging experts, interpreters, ar translators; (i)

(v)

litigation costs of the requested Party in relation to a specific request for information; (vi) costs for obtaining depositions or testimony; and (vii) fees and expenses, determined in accordance with amounts allowed under applicable law, on the person who voluntarily appears for an interview, deposition or testimony relating to a particular information request.

(c) The com petent authorities will consult each other in any particular case where extraordinary costs are likely to exceed $US5000 to determine whether the requesting Party will continue to pursue the request and bear the cost. (d) In the event that the requested Party finds it difficult or impossible to comply with a single or multiple requests for information fram the applicant Party because of limited staff or financial resources, the competent authorities will consult, and if mutually agreed, the applicant Party will bear the costs associated with complying with a request or multiple requests. •

f

ł··,r!,

This Memorandum force of the TIEA.

of Understanding

will come into effect on the entry into

This Memorandum ot Understanding TIEA remains in effect.

In witness whereof the undersigned, Memorandum of Understanding.

Dorye

tlo"~

i'h/\dlJPlicate

l2,

AU equally authentic.

For the Government Republic of Poland:

at

will remain

duly authorised

Lpvtolo"Z

in the

of t e

Polish

and

in effect for as long as the

this English

thereto,

have signed this

2.",,-,6~

languages,

both

day of texts being

For the Government of Bermuda: