3 (2010) Nr. 1TRACTATENBLADVAN HETKONINKRIJK DER NEDERLANDENJAARGANG 2010 Nr. 55A. TITELVerdrag tussen het Koninkrijk der Nederlanden en de Republiek SanMarino inzake de uitwisseling van informatie betreffendebelastingzaken;San Marino, 27 januari 2010B. TEKSTAgreement between the Kingdom of the Netherlands and theRepublic of San Marino for the Exchange of Information on TaxMattersThe Government of the Kingdom of the Netherlandsandthe Government of the Republic of San Marino,Desiring to facilitate the exchange of information on tax matters;Have agreed as follows:Article 1Object and scope of the AgreementThe competent authorities of the Contracting Parties shall provideassistance through exchange of information that is foreseeably relevantto the administration and enforcement of the domestic laws of the ContractingParties concerning taxes covered by this Agreement. Such informationshall include information that is foreseeably relevant to the determination,assessment and collection of such taxes, the recovery andenforcement of tax claims, or the investigation or prosecution of taxmatters. Information shall be exchanged in accordance with the provi-
552sions of this Agreement and shall be treated as confidential in the mannerprovided in Article 8. The rights and safeguards secured to personsby the laws or administrative practice of the requested Party remainapplicable to the extent that they do not unduly prevent or delay effectiveexchange of information.Article 2JurisdictionA requested Party is not obligated to provide information which is neitherheld by its authorities nor in the possession or control of personswho are within its territorial jurisdiction.Article 3Taxes covered1. The taxes which are the subject of this Agreement are taxes ofevery kind and description, including customs duties.2. The competent authorities of the Contracting Parties shall notifyeach other of any substantial changes to the taxation and related informationgathering measures covered by this Agreement.Article 4Definitions1. For the purposes of this Agreement, unless otherwise defined:a) the term “Contracting Party” means San Marino or the Netherlandsas the context requires;b) the term “San Marino” means the territory of the Republic of SanMarino, including any area within, which in accordance with internationallaw, the sovereign rights and the jurisdiction of San Marino maybe exercised;c) the term “the Netherlands” means the part of the Kingdom of theNetherlands that is situated in Europe, including its territorial seas, andany area beyond the territorial sea within which the Netherlands, inaccordance with international law, exercises jurisdiction or sovereignrights with respect to the sea bed, its subsoil and its superjacent waters,and their natural resources;d) the term “competent authority” means:(i) in the case of San Marino, the Minister of Finance or his authorisedrepresentative;(ii) in the case of the Netherlands, the Minister of Finance or hisauthorised representative;
3 55e) the term “person” includes an individual, a company and any otherbody of persons;f) the term “company” means any body corporate or any entity thatis treated as a body corporate for tax purposes;g) the term “publicly traded company” means any company whoseprincipal class of shares is listed on a recognised stock exchange providedits listed shares can be readily purchased or sold by the public. Sharescan be purchased or sold “by the public” if the purchase or sale of sharesis not implicitly or explicitly restricted to a limited group of investors;h) the term “principal class of shares” means the class or classes ofshares representing a majority of the voting power and value of the company;i) the term “recognised stock exchange” means any stock exchangeagreed upon by the competent authorities of the Contracting Parties;j) the term “collective investment fund or scheme” means any pooledinvestment vehicle, irrespective of legal form. The term “public collectiveinvestment fund or scheme” means any collective investment fundor scheme provided the units, shares or other interests in the fund orscheme 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 isnot implicitly or explicitly restricted to a limited group of investors;k) the term “tax” means any tax to which this Agreement applies;l) the term “applicant Party” means the Contracting Party requestinginformation;m) the term “requested Party” means the Contracting Party requestedto provide information;n) the term “information gathering measures” means laws and administrativeor judicial procedures that enable a Contracting Party to obtainand provide the requested information;o) the term “information” means any fact, statement or record in anyform whatever;p) the term “criminal tax matters” means tax matters involving intentionalconduct which is liable to prosecution under the criminal laws ofthe applicant Party;q) the term “criminal laws” means all criminal laws designated assuch under domestic law irrespective of whether contained in the taxlaws, the criminal code or other statutes.2. As regards the application of this Agreement at any time by a ContractingParty, any term not defined therein shall, unless the context otherwiserequires, have the meaning that it has at that time under the lawof that Party, any meaning under the applicable tax laws of that Partyprevailing over a meaning given to the term under other laws of thatParty.
5543. The Commentary of the OECD Model Agreement on Exchange ofinformation on Tax Matters shall apply to the interpretation of thisAgreement.Article 5Exchange of information upon request1. The competent authority of the requested Party shall provide uponrequest information for the purposes referred to in Article 1. Such informationshall be exchanged without regard to whether the conduct beinginvestigated would constitute a crime under the laws of the requestedParty if such conduct occurred in the requested Party.2. If the information in the possession of the competent authority ofthe requested Party is not sufficient to enable it to comply with therequest for information, that Party shall use all relevant informationgathering measures to provide the applicant Party with the informationrequested, notwithstanding that the requested Party may not need suchinformation for its own tax purposes.3. If specifically requested by the competent authority of an applicantParty, the competent authority of the requested Party shall provide informationunder this Article, to the extent allowable under its domesticlaws, in the form of depositions of witnesses and authenticated copies oforiginal records.4. Each Contracting Party shall ensure that its competent authoritiesfor the purposes specified in Article 1 of this Agreement, have theauthority to obtain and provide upon request:a) information held by banks, other financial institutions, and any personacting in an agency or fiduciary capacity including nominees andtrustees;b) information regarding the ownership of companies, partnerships,trusts, foundations, “Anstalten” and other persons, including, within theconstraints of Article 2, ownership information on all such persons in anownership chain; in the case of trusts, information on settlors, trusteesand beneficiaries; and in the case of foundations, information on founders,members of the foundation council and beneficiaries. Further, thisAgreement does not create an obligation on the Contracting Parties toobtain or provide ownership information with respect to publicly tradedcompanies or public collective investment funds or schemes unless suchinformation can be obtained without giving rise to disproportionate difficulties.5. The competent authority of the applicant Party shall provide thefollowing information to the competent authority of the requested Party
5 55when making a request for information under this Agreement to demonstratethe 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 theform in which the applicant Party wishes to receive the information fromthe requested Party;c) the tax purpose for which the information is sought;d) grounds for believing that the information requested is held in therequested Party or is in the possession or control of a person within thejurisdiction of the requested Party;e) to the extent known, the name and address of any person believedto be in possession of the requested information;f) a statement that the request is in conformity with the law andadministrative practices of the applicant Party, that if the requested informationwas within the jurisdiction of the applicant Party then the competentauthority of the applicant Party would be able to obtain the informationunder the laws of the applicant Party or in the normal course ofadministrative practice and that it is in conformity with this Agreement;g) a statement that the applicant Party has pursued all means availablein its own territory to obtain the information, except those thatwould give rise to disproportionate difficulties.6. The competent authority of the requested Party shall forward therequested information as promptly as possible to the applicant Party. Toensure a prompt response, the competent authority of the requested Partyshall confirm receipt of a request in writing to the competent authorityof the applicant Party and shall notify the competent authority of theapplicant Party of deficiencies in the request, if any, within 60 days ofthe receipt of the request.7. If the competent authority of the requested Party has been unableto obtain and provide the information within 90 days of receipt of therequest, including if it encounters obstacles in furnishing the informationor it refuses to furnish the information, it shall immediately informthe applicant Party, explaining the reason for its inability, the nature ofthe obstacles or the reasons for its refusal.Article 6Tax examinations abroad1. A Contracting Party may allow representatives of the competentauthority of the other Contracting Party to enter the territory of the firstmentionedContracting Party to interview individuals and examine recordswith the written consent of the persons concerned. The competentauthority of the second-mentioned Contracting Party shall notify the
556competent authority of the first-mentioned Contracting Party of the timeand place of the meeting with the individuals concerned.2. At the request of the competent authority of one Contracting Party,the competent authority of the other Contracting Party may allowrepresentatives of the competent authority of the first-mentioned ContractingParty to be present at the appropriate part of a tax examinationin the second-mentioned Contracting Party.3. If the request referred to in paragraph 2 is acceded to, the competentauthority of the Contracting Party conducting the examination shall,as soon as possible, notify the competent authority of the other ContractingParty about the time and place of the examination, the authority orofficial designated to carry out the examination and the procedures andconditions required by the first-mentioned Contracting Party for the conductof the examination. All decisions with respect to the conduct of thetax examination shall be made by the Contracting Party conducting theexamination.Article 7Possibility of declining a request1. The requested Party shall not be required to obtain or provideinformation that the applicant Party would not be able to obtain underits own laws for purposes of the administration or enforcement of itsown tax laws. The competent authority of the requested Party maydecline to assist where the request is not made in conformity with thisAgreement.2. The provisions of this Agreement shall not impose on a ContractingParty the obligation to supply information which would disclose anytrade, business, industrial, commercial or professional secret or tradeprocess. Notwithstanding the foregoing, information of the type referredto in Article 5, paragraph 4 shall not be treated as such a secret or tradeprocess merely because it meets the criteria in that paragraph.3. The provisions of this Agreement shall not impose on a ContractingParty the obligation to obtain or provide information, which wouldreveal confidential communications between a client and an attorney,solicitor or other admitted legal representative where such communicationsare:a) produced for the purposes of seeking or providing legal advice; orb) produced for the purposes of use in existing or contemplated legalproceedings.
7 554. The requested Party may decline a request for information if thedisclosure of the information would be contrary to public policy (ordrepublic).5. A request for information shall not be refused on the ground thatthe tax claim giving rise to the request is disputed.6. The requested Party may decline a request for information if theinformation is requested by the applicant Party to administer or enforcea provision of the tax law of the applicant Party, or any requirement connectedtherewith, which discriminates against a national of the requestedParty as compared with a national of the applicant Party in the same circumstances.Article 8ConfidentialityAny information received by a Contracting Party under this Agreementshall be treated as confidential and may be disclosed only to personsor authorities (including courts and administrative bodies) in thejurisdiction of the Contracting Party concerned with the assessment orcollection of, the enforcement or prosecution in respect of, or the determinationof appeals in relation to, the taxes covered by this Agreement,or the oversight above. Such persons or authorities shall use such informationonly for such purposes. They may disclose the information inpublic court proceedings or in judicial decisions. The information maynot be disclosed to any other person or entity or authority or any otherjurisdiction without the express written consent of the competent authorityof the requested Party.Article 9CostsIncidence of costs incurred in providing assistance shall be agreed bythe competent authorities.Article 10Implementation legislationThe Contracting Parties shall enact any legislation necessary to complywith, and give effect to, the terms of this Agreement.
558Article 11Mutual agreement procedure1. Where difficulties or doubts arise between the Contracting Partiesregarding the implementation or interpretation of this Agreement, thecompetent authorities shall endeavour to resolve the matter by mutualagreement.2. In addition to the agreements referred to in paragraph 1, the competentauthorities of the Contracting Parties may mutually agree on theprocedures to be used under the Articles 5 and 6.3. The competent authorities of the Contracting Parties may communicatewith each other directly for purposes of reaching agreement underthis Article.4. The Contracting Parties may also agree on other forms of disputeresolution.Article 12Entry into forceThis Agreement shall enter into force on the first day of the secondmonth after receipt of the last notification in which each Party has notifiedthe other in writing of the completion of its necessary internal proceduresfor entry into force.Upon entry into force, it shall have effect:a) for criminal tax matters on that date; andb) for all other matters covered in Article 1 on January 1 st , 2010, butonly in respect of taxable periods beginning on or after that date, orwhere there is no taxable period, all charges to tax arising on or afterthat date.Article 13Termination1. Either Contracting Party may terminate this Agreement by servinga notice of termination either through diplomatic channels or by letter tothe competent authority of the other Contracting Party.2. Such termination shall become effective on the first day of themonth following the expiration of a period of six months after the dateof receipt of notice of termination by the other Contracting Party.
9 553. Following termination of this Agreement the Contracting Partiesshall remain bound by the provisions of Article 8 with respect to anyinformation obtained under the Agreement.IN WITNESS WHEREOF the undersigned, being duly authorisedthereto, have signed this Agreement.DONE at San Marino this 27 th day of January 2010, in duplicate, inthe English language.For the Kingdom of the Netherlands:A. H. M. STOELINGAFor the Republic of San Marino:ANTONELLA MULARONID. PARLEMENTHet Verdrag behoeft ingevolge artikel 91 van de Grondwet de goedkeuringvan de Staten-Generaal, alvorens het Koninkrijk aan het Verdragkan worden gebonden.G. INWERKINGTREDINGDe bepalingen van het Verdrag zullen ingevolge zijn artikel 12 in werkingtreden op de eerste dag van de tweede maand na ontvangst van delaatste kennisgeving waarin de partijen elkaar schriftelijk ervan in kennishebben gesteld dat is voldaan aan de vereiste interne procedures voorde inwerkingtreding ervan.
5510J. VERWIJZINGENTitel : Verdrag nopens de Organisatie voor Economische Samenwerkingen Ontwikkeling;Parijs, 14 december 1960Tekst : Trb. 1961, 42 (Frans en Engels)Trb. 1961, 60 (vertaling)Laatste Trb. : Trb. 1994, 193Uitgegeven de drieëntwintigste februari 2010.De Minister van Buitenlandse Zaken,M. J. M. VERHAGENTRB5215ISSN 0920 - 2218Sdu Uitgevers’s-Gravenhage 2010