S.I. No. 439/2015 - Exchange of Information Relating to Tax Matters (Argentine Republic) Order 2015.
Notice of the making of this Statutory Instrument was published in | ||
“Iris Oifigiúil” of 16th October, 2015. | ||
WHEREAS it is enacted by section 826(1B) (as inserted by section 35 of the Finance Act 2007 (No. 11 of 2007)) of the Taxes Consolidation Act 1997 (No. 39 of 1997) that where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to exchanging information for the purposes of the prevention and detection of tax evasion in the case of taxes of any kind or description imposed by the laws of the State or by the laws of that territory, and that it is expedient that those arrangements should have the force of law, and that the order so made is specified in Part 3 of Schedule 24A of the Taxes Consolidation Act 1997 , then subject to section 826 of that Act, the arrangements shall, notwithstanding any enactment, have the force of law as if such order were an Act of the Oireachtas on and from the date of the insertion of a reference to the order into Part 3 of Schedule 24A; | ||
AND WHEREAS it is further enacted by section 826 (6) of the Taxes Consolidation Act 1997 that where such an order is proposed to be made, a draft of the order shall be laid before Dáil Éireann and the order shall not be made until a resolution approving of the draft has been passed by Dáil Éireann; | ||
AND WHEREAS a draft of the following Order has been laid before Dáil Éireann and a resolution approving of the draft has been passed by Dáil Éireann; | ||
NOW, the Government, in exercise of the powers conferred on them by section 826 (1B) of the Taxes Consolidation Act 1997 , hereby order as follows: | ||
1. This Order may be cited as the Exchange of Information Relating to Tax Matters (Argentine Republic) Order 2015. | ||
2. It is declared— | ||
(a) that the arrangements specified in the Agreement, the text of which is set out in the Schedule, have been made with the Argentine Republic in relation to exchanging information for the purposes of the prevention and detection of tax evasion, and | ||
(b) that it is expedient that those arrangements should have the force of law. | ||
SCHEDULE | ||
AGREEMENT BETWEEN | ||
IRELAND | ||
AND | ||
THE ARGENTINE REPUBLIC | ||
FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS | ||
Ireland and the Argentine Republic (hereinafter referred to as “the Parties”), desiring to conclude an Agreement for the Exchange of Information relating to Tax Matters, have agreed as follows: | ||
Article 1 | ||
Object and Scope of the Agreement | ||
The competent authorities of the Parties shall provide assistance through exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the 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 | ||
1. This Agreement shall apply to the following taxes: | ||
(a) in the case of the Argentine Republic: all taxes imposed by the Federal Administration of Public Revenue, except for customs duties, charges and levies. | ||
(b) in the case of Ireland: taxes of every kind and description imposed at the date of signature of the Agreement. | ||
2. This Agreement shall also apply to any identical taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes. This Agreement shall also apply to any substantially similar taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes if the competent authorities of the Parties so agree. The competent authorities of the Parties shall notify each other of any substantial changes to the taxation and related information gathering measures covered by the Agreement. | ||
Article 4 | ||
Definitions | ||
1. For the purposes of this Agreement: | ||
(a) the term "Party" means the Argentine Republic or Ireland as the context requires; | ||
(b)(i) the term “the Argentine Republic” includes the territory subject to the sovereignty of the Argentine Republic according to its constitutional and legal rules; | ||
(ii) the term “Ireland” includes any area outside the territorial waters of Ireland which has been or may hereafter be designated, under the laws of Ireland concerning the Exclusive Economic Zone and the Continental Shelf, as an are within which Ireland may exercise such sovereign rights and jurisdiction as are in conformity with international law; | ||
(c) the term "competent authority" means: | ||
(i) in the Argentine Republic, the Head of the Federal Administration of Public Revenues or his authorised representative; | ||
(ii) in Ireland, the Revenue Commissioners or their authorised representative; | ||
(d) the term "person" includes an individual, a company or any other body of persons; | ||
(e) the term "company" means any body corporate or any entity that is treated as a body corporate for tax purposes; | ||
(f) 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; | ||
(g) 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; | ||
(h) the term "recognised stock exchange" means any stock exchange recognised by the competent authorities of the Parties; | ||
(i) 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; | ||
(j) the term "tax" means any tax to which the Agreement applies; | ||
(k) the term “Applicant Party” means the Party requesting information; | ||
(l) the term "Requested Party" means the Party requested to provide information; | ||
(m) the term "information gathering measures" means rules and administrative or judicial procedures that enable a Party to obtain and provide the requested information; | ||
(n) the term "information" means any fact, statement or record in any form whatever; | ||
(o) the term “criminal tax matters” means tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the Applicant Party | ||
(p) 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 statutes. | ||
2. As regards the application of this Agreement at any time by any of the Parties, 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. | ||
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 all relevant information gathering measures to provide the Applicant Party with the information requested, notwithstanding that the Requested Party may not need such information for its own tax purposes. | ||
3. If specifically requested by the competent authority of an Applicant Party, the competent authority of the Requested Party shall provide information under this Article, to the extent allowable under its domestic laws, in the form of depositions of witnesses and authenticated copies of original records. | ||
4. Each 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 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, and other persons, including, within the constraints of Article 2, ownership information on all such persons in an ownership chain; in the case of trusts, information on settlors, trustees and beneficiaries; and in the case of foundations, information on founders, members of the foundation council and beneficiaries. Further, this Agreement does not create an obligation on the Parties to obtain or provide ownership information with respect to publicly traded companies or public collective investment funds or schemes unless such information can be obtained without giving rise to disproportionate difficulties. | ||
5. The competent authority of the Applicant Party shall provide the following information to the competent authority of the Requested Party when making a request for information under the Agreement to demonstrate the foreseeable relevance of the information to the request: | ||
(a) the identity of the person under examination or investigation; | ||
(b) a statement of the information sought including its nature and the form in which the Applicant Party wishes to receive the information from the Requested Party; | ||
(c) the tax purpose for which the information is sought; | ||
(d) 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 it is in conformity with this Agreement; | ||
(g) a statement that the Applicant Party has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties. | ||
6. The competent authority of the Requested Party shall 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, if any, within 60 days of the receipt of the request; | ||
(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. | ||
7. Requests shall be submitted in writing and may be made by electronic means. In the case of requests to the Argentine Republic, such requests shall be made in the Spanish language and in the case of requests to Ireland, in the English language. | ||
Article 6 | ||
Presence of Officials of a Party (the Applicant Party) in the territory of the other Party (the Requested Party) | ||
1. With reasonable notice, the Requested Party may allow representatives of the competent authority of the Applicant Party to be present in its territory to interview individuals and examine records with the written consent of the persons concerned. The competent authority of the Requested Party shall notify the competent authority of the Applicant Party of the time and place of the meeting with the individuals concerned. | ||
2. At the request of the competent authority of the Applicant Party, the competent authority of the Requested Party may allow representatives of the competent authority of the Applicant Party to be present at the appropriate part of a tax examination in the Requested Party. | ||
3. If the request referred to in paragraph 2 is acceded to, the competent authority of the 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 Requested 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 | ||
1. The Requested Party shall not be required to obtain or provide information that the Applicant Party would not be able to obtain under its own laws for purposes of the administration or enforcement of its own tax laws. The competent authority of the Requested Party may decline to assist where the request is not made in conformity with this Agreement. | ||
2. The provisions of this Agreement shall not impose on a 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 considered as such a secret or trade process merely because it meets the criteria in that paragraph. | ||
3. The provisions of this Agreement shall not impose on a 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. | ||
4. The Requested Party may decline a request for information if the disclosure of the information would be contrary to public order. | ||
5. A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed. | ||
6. 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 or a citizen of the Requested Party as compared with a national or a citizen of the Applicant Party in the same circumstances. | ||
Article 8 | ||
Confidentiality | ||
Any information received by a 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 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 juridical 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 | ||
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 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. | ||
Article 10 | ||
Mutual Agreement Procedure | ||
1. 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. | ||
2. In addition to the agreements referred to in paragraph 1, the competent authorities of the Parties may mutually agree on the procedures to be used under Articles 5 and 6. | ||
3. The competent authorities of the Parties may communicate with each other directly for purposes of reaching agreement under this Article. | ||
Article 11 | ||
Entry into Force | ||
1. The Parties shall notify each other in writing of the completion of the necessary internal procedures required by their respective laws for the bringing into force of this Agreement. | ||
2. The Agreement shall enter into force on the thirtieth (30th) day after the receipt of the later of these notifications and shall thereupon have effect: | ||
(a) for criminal tax matters, on the date of entry into force, for taxable periods beginning on or after that date or, where there is no taxable period, for all charges to tax arising on or after that date; | ||
(b) for all other matters covered in Article 1, on that date, for taxable periods beginning on or after the first day of January of the year 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 following the date on which the Agreement enters into force. | ||
Article 12 | ||
Termination | ||
1. This Agreement shall remain in force until terminated by a Party. Either Party may terminate the Agreement by giving written notice of termination at least six (6) months before the end of any calendar year. In such event, this Agreement shall cease to have effect on the first day of the following calendar year. | ||
2. Even after the termination of the Agreement in accordance with paragraph 1, both Parties shall remain bound by the provisions of Article 8 with respect to any information obtained under this Agreement. | ||
In witness whereof, the undersigned, being duly authorised thereto, have signed this Agreement. | ||
Done at Berlin this day 29 of October 2014, in two originals in the Spanish and English languages, both texts being equally authentic. | ||
| ||
| ||
GIVEN under the Official Seal of the Government, | ||
13 October 2015. | ||
ENDA KENNY, | ||
Taoiseach. | ||
