- 1
- The competent authorities of the Contracting States shall exchange information to administer and enforce the domestic laws of the Contracting States concerning taxes covered by this Agreement, including information to effect the determination, assessment, and collection of tax, the recovery and enforcement of tax claims, or the investigation or prosecution of tax crimes or crimes involving the contravention of tax administration.
- 2
- The competent authority of the requested State shall provide information upon request by the competent authority of the applicant State for the purposes referred to in paragraph 1. If the information available in the tax files of the requested State is not sufficient to enable compliance with the request, that State shall take all relevant measures, including compulsory measures, to provide the applicant State with the information requested.
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- a)The requested State shall have the authority to:
- (i)examine any books, papers, records, or other tangible property which may be relevant or material to such inquiry;
- (ii)question any person having knowledge or in possession, custody or control of information which may be relevant or material to such inquiry;
- (iii)compel any person having knowledge or in possession, custody or control of information which may be relevant or material to such inquiry to appear at a stated time and place and testify under oath and produce books, papers, records, or other tangible property;
- (iv)take such testimony of any individual under oath.
- b)Privileges under the laws or practices of the applicant State shall not apply in the execution of a request but shall be preserved for resolution by the applicant State.
- 3
- The requested State shall provide information requested pursuant to the provisions of this Article regardless of whether the requested State needs such information for purposes of its own tax. Moreover, if specifically requested by the competent authority of the applicant State, the requested State shall:
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- a)specify the time and place for the taking of testimony or the production of books, papers, records, and other tangible property;
- b)place the individual giving testimony or producing books, papers, records and other tangible property under oath;
- c)permit the presence of individuals designated by the competent authority of the applicant State as being involved in or affected by execution of the request, including an accused, counsel for the accused, individuals charged with the administration and enforcement of domestic laws of the applicant State covered by this Agreement, and a commissioner or magistrate present for the purpose of rendering evidentiary rulings or determining issues of privilege under the laws of the applicant State;
- d)provide individuals permitted to be present with an opportunity to question, directly or through the executing authority, the individual giving testimony or producing books, papers, records and other tangible property;
- e)secure original and unedited books, papers, and records, and other tangible property;
- f)secure or produce true and correct copies of original and unedited books, papers and records;
- g)determine the authenticity of books, papers, records and other tangible property produced;
- h)examine the individual producing books, papers, records and other tangible property regarding the purpose for which and the manner in which the item produced is or was maintained;
- i)permit the competent authority of the applicant State to provide written questions to which the individual producing books, papers, records and other tangible property is to respond regarding the item produced;
- j)perform any other act not in violation of the laws or at variance with the administrative practice of the requested State;
- k)certify either that procedures requested by the competent authority of the applicant State were followed or that the procedures requested could not be followed, with an explanation of the deviation and the reason therefore.
- 4
- The provisions of the preceding paragraphs shall not be construed so as to impose on a Contracting State the obligation:
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- a)to carry out administrative measures at variance with the laws and administrative practice of that State or of the other Contracting State;
- b)to supply particular items of information which are not obtainable under the laws or in the normal course of the administration of that State or of the other Contracting State;
- c)to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process;
- d)to supply information, the disclosure of which would be contrary to public policy;
- e)to supply information requested by the applicant State to administer or enforce a provision of the tax law of the applicant State, or any requirement connected therewith, which discriminates against a national of the requested State. A provision of tax law, or connected requirement, will be considered to be discriminatory against a national of the requested State if it is more burdensome with respect to a national of the requested State than with respect to a national of the applicant State in the same circumstances. For purposes of the preceding sentence, a national of the applicant State who is subject to tax on worldwide income is not in the same circumstances as a national of the requested State who is not subject to tax on worldwide income. The provisions of this subparagraph shall not be construed so as to prevent the exchange of information with respect to the taxes imposed by the United States on branch profits or on the premium income of nonresident insurers or foreign insurance companies or on any similar such taxes imposed by Curaçao, Sint Maarten and the Caribbean part of the Netherlands in the future;
- f)notwithstanding subparagraphs a) through e) of this paragraph, the requested State shall have the authority to obtain and provide, through its competent authority, information held by financial institutions, nominees, or persons acting in agency or fiduciary capacity (not including information that would reveal confidential communications between a client and an attorney, solicitor or other legal representative where the client seeks legal advice), or information respecting ownership interests in a person.
- 5
- Except as provided in paragraph 4, the provisions of the preceding paragraphs shall be construed so as to impose on a Contracting State the obligation to use all legal means and its best efforts to execute a request. A Contracting State may, in its discretion, take measures to obtain and transmit to the other State information which, pursuant to paragraph 4, it has no obligation to transmit.
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- The competent authority of the requested State shall allow representatives of the applicant State to enter the requested State to interview individuals and examine books and records with the consent of the individuals contacted.
- 7
- Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to individuals or authorities (including judicial and administrative bodies) involved in the determination, assessment, collection, and administration of, the recovery and collection of claims derived from, the enforcement or prosecution in respect of, or the determination of appeals in respect of, the taxes which are the subject of this Agreement, or the oversight of the above. Such individuals or authorities shall use the information only for such purposes. These individuals or authorities may disclose the information in public court proceedings or in judicial decisions.
