tiea agreement between netherlands antilles and cayman islands

8/7/2019 TIEA agreement between Netherlands Antilles and Cayman Islands

1/18

AGREEMENT

BETWEEN

THE CAYMAN ISLANDS AS AUTHORISED UNDER THE LETTER OFENTRUSTMENT DATED 1 SEPTEMBER 2009 FROM THE UNITED KINGDOM OF

GREAT BRITAIN AND NORTHERN IRELAND,

AND

THE KINGDOM OF THE NETHERLANDS, IN RESPECT OF THE NETHERLANOSANTILLES

FOR

THE EXCHANGE OF INFORMATION WlTH RESPECT TO TAXES

1


2/18

The Govemment of the Cayman Islands.

","the Govemment of the Kingdom of the Nelhertands. in respect of the Nethef1andsAntilles .

DESIRING ta strengthen the relationship between them through cooperallon intaxation matters.

Have agreed as lollows:

Article 1Scope of the Agreement

, . The competent authorities of lhe Parties shall proville assistance Ihroughexchange of information lhat is foreseeably relevant ta the administration andenforment of lhe domestlc laws 01 the Parties conoeming taxes coverecl by thisAgreement Such information shall include information thal is foreseeably relevant la thedetermination. assessment and cojlectlon 01 such taxes. the reovery and enlorcementof tax daims. or the investigation or prosecution of tax malters. Information shall beexchanged in accordance with the provisions of thlS Agreement and shall be treatecl asconfidenlial in the mannef provided in Article 8. The rights and saleguards securecl tapersans by the laws or administratIVe practice of the requeSled Party remain applicablela the exlenllt1at they do nol uoduly preVen! or delay effective exchange of inlonnation.

2. As regards the Kingdom 01 the Nelher1ands. this Agreement shall applyonly la the Nelherlands Antilles

2


3/18

MicJe 2J(Jrisdiction

A requested Party is not obIigated to Pfovide Information whic:h is n e ~ h e r held byits authorities nor in the posseSSion or controt of parsons who are w ~ t u n its temloria!jurisdiction

M


4/18

Article 4Definitions

1 For the purposes of this Agreement, unless otherwlse defined

a) the terni "Party" means the Cayman Islands. Of the Klogdom of theNetheriands. in respect of the Netheriands Antilles as the conlextreQuires .

b) the lenn "Cayman Islands" means the temtory of the CaymanIslands and indudes the temtorial sea and areas within themantlme boundaries of the Cayman ISlands and any area wrthinwhich in aCCOfdance with intemational law the rights 01 theCayman Islands with respect to the seabed and sub-soll and theirnatura l resources may be exereised;c) the terni "the Ne!he11ancts Anblles" means the part of the Kiogdom01 the Netherlands that is siluated in the Caribbean Sea andconsistlng of the Island Terrilories of Bonaire. Curaao. Saba. SI.E u s t a ~ u s and St. Maarten (Dutch part) indudlng the territorialwaters thereof and the pari of the seabed and ils subsoil uoder theCaribbean Sea over which the Klngdom of the Nethenands hassovereign rights in aordance wrth international law but excludingthe pan thereol relallng to Al'\Jba .d) the term ' competent authority" rneansi) in the case of the Cayman Islands. the Tax Information

Authority;ii) in the case of the Nethenands Antilles. the Mlnister of

Finance or his authorired represenlalive:e) the term "person" indudes an indivlClual . a company and any other

body of pei"SOMs.the term "company" means any body COfI)OI'ale Of any entlty that istreated as a body corporate fOf tax purposes.

g) the lerm "publicty traded company" means any company whoseprincipal class of shares is hsted on a recognlsed stock exchangeprovided ils bted shares can be readily purchased or sald by thepublic. Shares can be purchased or soId "by the publi


5/18

purchase Of sale of shares is nO! implicrtly or e ~ p l i c r t l y reSlcted toa limited group of investors,

h) the term "principal class of shares" means the clIss or classes ofshares representHlg a majority of the voting power and value 01 thecompany;i) the term "recognised stock e ~ c h a n g e means the stoell e ~ c h a n g e s of the Cayman Islands, the Nethef'tands AntiJies and any stocke ~ c h a n g e agreed upon by the competent authorilies of the Parties;il the term 'collectlve investment fund or scheme' means any pooIedinvestment vehicle, irrespective of iegal foon The term 'publiccollective investment fund or scheme" means any collectiveinvestment fund or scheme provided the units, shares or otherinterests in the fund or scheme can be readiiy purchased, soId orredeemed by the public. Units, shares or other interests in the fundor scheme can be readity purchased, soId Of redeemed "by thepublic' if the purchase, saie or redemptlon is not implicitly Ofexplicitly restricted 10 a limited group of inveslors.

k) the term 'tax" means any tax 10 which the Agreement applies;1) the lerm "applicant Party" means the Party requestlng infoonation;m) the term "requested Party" means the Party requested 10 proVide

inloonatlon;n) the term ' information gathering measures" means laws and

administrative Of jlJdicial procedures that enable a Party to obtalnand provide the requested infoonation;

0) the tenn "information" means any fact , statement Of record in anyform whatever;

p) the term "criminal tax matters" means tax matters involvingintentional conduct which is liable 10 prosecution under the crimlnallaws of the applicant Party;

q) the term "criminal laws' means ail crimlnal laws designated assuch under domestic law ilTespectlve of whether contalned in thet a ~ laws, the criminaJ code or othef statutes.

5


6/18

2. As regards the application of thlS Agreement Olt any tlme by a Party, anyttlrm noI defined Ir.ereln shall , unless the conleXi OIhel'WlStl reqUlftlS, have the meanlngthat il hu at thaillme under the law of that Party, any meaning uoder the a p p l i c a b l E l t a ~ laws of the appliC8nt Party prevailing over. meaning given to the term uoder other lawsof that Party

"'


7/18

b) information regarding the ownership of compan.es, partnerships,tn.lsts, foundations , "AnstaHen" and ott.er parsons, inctuding, wittllnthe constramlS of Article 2, ownershlp information on ail suchpersons in an ownership chain; in the case of trusts, informationon settlofs, trustees and beneflClanes; and in the case offoundations, information on founders, membef's of the foundationcoundl and benefidaries. Further, this Agreement does not Cfeatean obligation on the Parties to oOtaln or provide ownershipinformation Wlth respect 10 pubtidy traded companl8S or pubticcotJective investment runds Of schemes unless such informationcan be obtained wilhout giVlng rise to disproportionate difflCU!bes

5. The competent authority of the applieanl Party shall provide the fotlowinginformation to the competent authority of the requested Party when making a request forinformation under the Agreement to demonstrate the foreseeable relevance of theinformation to the request:

a) the identrty of the person UOOer examinatlOn or investigation andthe tax period of the person concemed;

b) to the extent known, the name and address of any person believedto be in possession of the requested information;

c) grounds for believing that the information requested is held in therequested Party or is in the possession or control of a personwithin the jurisdiction of the requested Party;

d) a statement that the request is in conformity wilh the law andadministrative practices of the applieant Party , that if the requestedinformation was within the junsdiction of the applieant Party thenthe competent authonty of the applieant Party would be able toobtaln the information under the laws of the applieant Party or inthe normal course of administrative practice and that il is inconformity with Ihis Agreement;

and, 10 the rullest extenl possible.

7


8/18

e) a statement of the information sought including ijs nature and thefonn in which the appHcant Party wishes to receive the Informationfrom the requested Party:

f) the tax purp0s8 fOf which the Infonnation 15 sought:g) a statement thal the applicant Party has puBued ail means

available in ijs own terrnory to obtain the information. except thosethat would give rise to disproportionate difficulties

6 . The competent authority of the requested Party shall f()(Ward the requestedinfOfTTlatlOll as prompUy as possible to the applicant Party

Article 6TlllC elCllmmlltions abroad

1. A Party may, on request, allow representatives of the competent Iluthontyof the othe!' Party to enter its terrnory to interview indlviduals and examine records withthe written consent of the pel'Sons concemed. The competent authority of the applicantParty shall notify the competent authority of the requested Party of the time and place ofthe meeting wrth the indivlduals concemed

2. At the request of the competent authority of one Party. the competentauthority of the other Party may allow representa\Nes of the competent authority of thefirst-mentioned Party to be present al the appropriate part of a tax elCamination in thesecond-mentiOOed Party.

3. If the request referred to in paragraph 2 is acceded to. the competentauthority of the Party conductlng the examination shall. as saon as possible. notJfy thecompetent authority of the other Party about the lime and place of the examlnation, theauthOOty Of official designated to carry 00\ the elCamination and the procedures andconditions required by the first-mentloned Party fOf the conduct of the examinatlon. AHdecisions with respect to the conduct of the tax examination shall be made by the Partyconduding the examination

6


9/18

MicIe 7Possibility of declining I l raquest

1 The requested Party shall no l be required 10 obIain or provide information'ha! the applicant Party would l'lOt be able 10 obtaln undef its own laws for purposes ofthe administration or enlorcement of Ils own tax laws. The competent authooty of therequested Party may decline 10 assis! where the reques! is not made in conformity Wlththis Agreement.

2. The prOVISionS of this Agreement shall not impose on a Party the obligatIOn10 supply information which is subied 10 legal privilege or would disdose any trade,business, industrial, commercial or prolessional secret or Irade process Notwithstandingth e foregoing , information of th e type referred 10 in Article 5. paragraph 4 shall not betreated as sucn a secret or trade proeess merely because it meets the crileria in tha!paragraph

3. The requesled Party may decline i l request for inlormallon if the di&closureof the information would be contrary 10 public poIicy

4. A requesl lor information shall no! be ref\lsed on the groond tha! the taxdaim givlng rise 10 the reques! is disputed

5_ The requested Party may decline a request fOf information if the informationie requeeted by the applicant Party to administer Of enforce a proVIsion of the ta . law ofthe applicant Party, Of any requirement connected therewrth . which discnminates agalnsta national of the requested Party as compared wrth a national of the applicant Party inthe same ClfCumstanoes

9


10/18

Article 8Conrlden/iality

Arly information received by a Party under this Agreement shall be treated asconfidential and may be disclosed anly to persans Of authorities (indudrng courts andadministrative bodies) in the jurisdiction of the Party lXInc::emed Wlth the assessment orcollection of. the enforcemenl or Pfosecution in respect of, or the determination ofappeaJs in relation to. the taxes covered by th,s Agreement. Such persons or authoritiesshall use such information only for such purposes. They may disclose the information ,npublie court Pfoceedings Of in judicial decisions The information may r'IOt be disclosed 10any other persan Of entlly or authority or any other jurisdiction or used for any otherpurpose withoutthe express written consent of the competent authority of the requestedp,,,,

Article 9CM"

Incidence of costs inc;urred in providing assistance shall be agreed by thecompetent authorities.

Article 10Language

Requests lOf assistance and answers thereto shall be drawn up in English.

10


11/18

ArtICle 11Mu/ual agrooment proceduf8

1 Where ditflCUlties or doubts anse between the Parties regarding theimplementation or interpretation of the Agreement. the competent authont!es shallendeavoor to re501ve the matter by mutual agreement.

2. In a d d ~ i o n to the agreements referred to in paragraph 1, the competentauthorities of the Parties may mutually agree on the procedures to be used underArticles 5 and 6.

3. The competent authorities of the Parties may communlcate with eacn otherdirectly for purposes of reacnlng agreement under this Article.

4. The Parties shall agree on other forms of dispute resolution should thisbecome necessary.

Article 12Entry in/o forc6

This Agreement shall enter into lorce on the tirst day 01 the second monlh afterthe laler ollhe dales on whicn eacn 01 the Parties has notlfled the other. in writlng. of thecompletion of necessary intemal procedures for entry inlo force Upon the date ofentry ;n lo loree. il shall have elfed:;

a) for mminal t a ~ matters on Ihat dale, but only in respect of t a ~ a b l e periods beginning on or after January 1". 2010 or. where there isno laxable period. ail charges to t a ~ arising on or after January 1".2010; and

b) for ail other matters coyered in Article 1 on !flat dale. but only inrespect of taxable periods beginnlng on or after that date or. wherethere is no l a ~ a b l e period . ail charges 10 tax arising on or after thatdate.


12/18

Article 13Termina/ion

1. This A{jreement shall remaln in force until termlnated by one of the PartiesEithef Party may tennlnate the Agreement, through diplomatie channels. by giving noticeof terrnination to the other Party at least six months before the end of any calendar yearafter the expiration of a period of three years from the date of entry into force. In sllchevent the A{jreement shall cease to have effect for taxable years and periods beginningafter the end of the calendar year in which the notice of termination has been gllen

2. In the event of termination . both Panies shall remain bound by the provisionof Article 8 with respect to any infonnation obtained under the Agreement.

IN WlTNESS WHEREOF the unde!"signed. duly authorized thereto by the,rrespective Govemments. have signed this Agreement.

DONE aldupticate. in the English language

FOR THE CAYMAN ISlANDS'

12

. this dayof 2O()g , ln

FOR THE KINGDOM OFTHE NETHERlANDS. IN RESPECT OFTHE NETHERlANDS ANTILLES


13/18

AGREEMENT

BETWEEN

THE CAYMAN ISLANOS AS AUTHORISEO UNDER THE LETTER OFENTRUSTMENT DATED 1 SEPTEMBER 2009 FROM THE UNITEO KINGDOM OF

GREAT BRITAIN AND NORTHERN IRELANO,

AND

THE KlNGDOM OF THE NETHERLANDS, IN RESPECT OF THE NETHERLANDSANTILLES

CONCERNING

THE INTERPRETATION AND APPLICATION OFTHE AGREEMENT BETWEEN THE CAYMAN ISLANDS AS AUTHORISEO UNDER

THE LETTER OF ENTRUSTMENT DATEO 1 SEPTEMBER 2009 FROM THE UNITEDKINGDOM OF GREAT BRLTAIN AND NORTHERN IRELANO,

AND

THE KINGDOM OF THE NETHERLANOS, IN RESPECT OF THE NETHERLANOSANTILLESFOR THE eXCHANGE OF INFORMATION WITH RESPECT TO TAXES

,


14/18

The Govemment Qf the Cayman Islands,,,'"the Govemment Qf the Kingdom of the Netherlan


15/18

1/ Ad Articl& 5If personal data is exchanged under the Agreement, the foilOWlng a d d ~ i o n a l

provisions shall apply'

a) The recelVing authority may use sl.JCh dala only fo r the staled purposeand shall be subject 10 the conditions prescribed by lhe supplyingauthority; such use is aise pennittee! , subject to the written consenlrequired under Article 6, fo r the prevention and prosewtion of seriouscnmes and fOf lhe purpose of adresslng serious Ihreats 10 publiesecurity;

b} The receivlng authority shall on requesl Inform lhe supplying authorityabout lhe use of the suppHed data and lhe rHuks acnleved thereby;

c) Personal data may be supplied only 10 the responsible ager1Cles Allysubsequent supply 10 other agencies may be enected only Wlth lhe pnorapproval of the supplying authonty;

d} The supplying authority shall be obliged to take ail reasanable care toensure Ihal the data 10 be supplied are accurale and thal they arenete$sary for and proportionate to the purpose for wtuch they aresupplied Aroy bans on data supply prescribed under applicable domestielaw shall be obsefved. If emerges thal inaccurale data or data whichshould not have been suppliee! have been supplie


16/18

person, the receiving authority may not plead in ils defence that thedamage had been caused by the supplying agency:

g) Il the domestic law of the supplylng authority provided, wrth respect 10 thepel"$Oflal data supplied, for erasure wrth,n a certain penod of Ilme thatauthority shall inform the receiving authority aecordingly Jrrespective 01such periods, supplied personal data shall be erased once they are nolonger required for the purpose for which they were supplied:

h) The supplying and the receiving authority shall be obliged to keep offiCiairecords 01 the supply and recelpt of personal data.

i) The SUpplying and the reoeiving authority shan !:le obliged 10 take effedivemeasures to proIect the personal data supplied aga'nsl unauthorise

11/ Ad arficIB 12

ln the event that a Party applies prajudicial or raslfictive measures base

a) the other Party does no! engage in effectIVe exchange of information:b) beeause lacl


17/18

IV

ln the lighl of the IIxpenence 01 operatJng the Agreemerrt. or to refIect ehangll"lgarcum.taoces. either Party may ....,th la propose i l variatton in the terms of ttusAgreement Il SO, it 1$ uoderstood the other Party will agree 10 hold tlmely dl,cuss.ion,with a view to revising the term. of \he Agreement

a) The competent authontiH m.y Initiale discussions in cue(i) the Cayman Islands entera Into an agreement WJth anothef

jun&dict1On wnich provides for ether tonns of II_change ofinformlltion,

(ir) the Kingdom of the Nether1ands. in res,ped: of the Nether1andsAntilles, enl.ra inlo an agreement WIIh anothef jl.ll'1t.ict1Ollcomparable 10 the Cayman ISland' which proll'ide. for other form,of IIxchange of Information;

(iii) the Caymen l,land, introduces new !egillalion wh lch enable.other form. ofaxchange of inlonnatlon ;

(iv) the Netnen.odl Antilles introduces new !agls'allon which enablesother fOfTl'l' of eXcNnge of information.

b) If the Cayman Islands enli!IR !l'lIO ilffi3lngernents wrth another junt4ic::boncomparable 10 the NetheI1ands Antilles for the of informa\Jonwnh respect 10 taxes lha! are IeSi buroensome in ,ny materilll respecl!han the prOVISion. of the Agreement. the Nethertana. Antilles may initialediscussions with the Cayman 111ands wrth a Vlew to modlfying theAgreement 10 have Ilmilar elled:

cl If the Nelher1ands Antilles enleMi inlo arrangements Wlth anotherjurisdiction comparable to lhe Cayman 111ancb for lhe provision ofinformation WIth respect 10 taxes !ha! are IeSI bordensome in any materialrespect than the provISions of the Agreement. the Cayman Islands mayinitiale discusslOfls Wlth the Nelher1ancb AntiIIeI wrth a _ to modlfy lngthe Agreement to have llimilar e1!ed.

,


18/18

v

This Protocol shall form an integral part of the Agreement between the CaymanIslands as authosed under the lener of entrustment dated 1 5eptembef 2009 tram theUnited Kingdom of Great Britaln and Northem Irstand, and the Kingdom of theNetherlands, in respect of the Netherlands Antilles lo r the exchange of Information WIthrespect to tax matll!f!l, and Ihall enter into fOfCEI on the same date as theAgreement.

VI.

The Parties ma)', by mulual arrangement, amend Ihis Protocol al any lime inwriting. Such amendment ,hall enter into force on the tirsl da)' of the second month sfterthe Parties have notifled each otller in writing Iha! the constitutionsl or internairequirements lOf the entry into force of the amendmem have been complied with

IN WITNESS WHEREOF the undersigned. being duly authorised ln Iha! behalfby their rl!$pectlYe Govemments . have signe

tiea agreement between netherlands antilles and cayman islands

Documents