Agreement between the Government of New Zealand and the Government of Jersey for the Exchange of Information with Respect to Taxes [2010] NZTS 14 (27 October 2010)

<title>Agreement between the Government of New Zealand and the Government of Jersey for the Exchange of Information with Respect to Taxes [2010] NZTS 14 (27 October 2010)</title>
                   Agreement
                    between
         the Government of New Zealand
                      and
            the Government of Jersey
                       for
the Exchange of Information with Respect to Taxes
Whereas the Government of New Zealand and the Government of Jersey
("the Parties") recognise that present legislation already provides for
cooperation and the exchange of information in criminal tax matters;


Whereas the Parties have long been active in international efforts in the
fight against financial and other crimes, including the targeting of terrorist
financing;


Whereas it is acknowledged that Jersey has the right under the terms of
its Entrustment from the United Kingdom to negotiate, conclude, perform
and, subject to the terms of this Agreement, terminate a tax information
exchange agreement with the Government of New Zealand;


Whereas the Parties wish to enhance and facilitate the terms and
conditions governing the exchange of information relating to taxes;


Now, therefore, the Parties have agreed to conclude the following
agreement which contains obligations on the part of the Parties only:


                                      Article 1
                           Scope of the Agreement


       The Parties through their competent authorities shall provide
assistance through exchange of information that is foreseeably relevant to
the administration and enforcement of the domestic laws of the Parties
concerning the taxes covered by this Agreement, including information
that   is    foreseeably   relevant     to   the   determination,   assessment,
enforcement or collection of such taxes, with respect to persons liable to
such taxes, or to the investigation or the prosecution of civil or criminal tax
matters in relation to such persons. A requested Party is not obliged to
provide information which is neither held by its authorities nor in the


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possession of, or obtainable by, persons who are within its territorial
jurisdiction. 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 the effective exchange of
information.


                                      Article 2
                                Taxes Covered


1    This Agreement shall apply to the following taxes imposed by the
Parties:


     (a)     in the case of Jersey:
             (i)    the income tax; and
             (ii)   the goods and services tax; and
       (b)     in the case of New Zealand, taxes of every kind and
               description.


2    This Agreement shall apply also to any identical or substantially
similar taxes imposed after the date of signature of the Agreement in
addition to, or in place of, the existing taxes if the Parties so agree. The
competent authority of each Party shall notify the other of substantial
changes in laws or measures which may affect the obligations of that
Party pursuant to this Agreement.


3    This Agreement shall not apply to taxes imposed by municipalities,
local authorities or possessions of a Party.


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                                Article 3
                               Definitions


1   In this Agreement:
    (a)   Jersey means the Bailiwick of Jersey, including its territorial
          sea;
    (b)   "New Zealand" means the territory of New Zealand but does not
          include Tokelau; it also includes any area beyond the territorial
          sea designated under New Zealand legislation and in
          accordance with international law as an area in which New
          Zealand may exercise sovereign rights with respect to natural
          resources;
    (c)   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;
    (d)    company means any body corporate or any entity that is
          treated as a body corporate for tax purposes;
    (e)   "competent authority" means, in the case of Jersey, the
          Treasury     and   Resources      Minister   or   an   authorised
          representative of the Minister and, in the case of New Zealand,
          the Commissioner of Inland Revenue or an authorised
          representative of the Commissioner;


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(f)   criminal laws means all criminal laws designated as such
      under domestic law, irrespective of whether such laws are
      contained in the tax laws, the criminal code or other statutes;
(g)   "criminal tax matters" means tax matters involving intentional
      conduct whether before or after the entry into force of this
      Agreement which is liable to prosecution under the criminal
      laws of the requesting Party;
(h)   information means any fact, statement, document or record in
      whatever form;
(i)   information      gathering       measures     means   laws    and
      administrative or judicial procedures enabling a requested Party
      to obtain and provide the information requested;
(j)   "person" includes an individual, a company or any other body or
      group of persons;
(k)   principal class of shares means the class or classes of shares
      representing a majority of the voting power and value of the
      company;
(l)   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;
(m) recognised stock exchange means any stock exchange
      agreed upon by the competent authorities of the Parties;
(n)   "requested Party" means the Party to this Agreement which is
      requested to provide or has provided information in response to
      a request;
(o)   "requesting Party" means the Party to this Agreement
      submitting a request for or having received information from the
      requested Party; and


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      (p)     "tax" means any tax covered by this Agreement.


2     As regards the application of this Agreement at any time by a Party,
any term not defined therein shall, unless the context otherwise requires,
have the meaning that it has at that time under the laws 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 4
                   Exchange of Information upon Request


1     The competent authority of the requested Party shall provide upon
request by the competent authority of the requesting Party information for
the purposes referred to in Article 1. Such information shall be exchanged
without regard to whether the requested Party needs such information for
its own tax purposes or the conduct being investigated would constitute a
crime under the laws of the requested Party if it had occurred in the
territory of the requested Party. The competent authority of the requesting
Party shall only make a request for information pursuant to this Article
when it is unable to obtain the requested information by other means,
except where recourse to such means would give rise to disproportionate
difficulty.


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, the requested Party shall use the information gathering
measure it considers relevant to provide the requesting Party with the
information requested, notwithstanding that the requested Party may not
need such information for its own tax purposes.


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3    If specifically requested by the competent authority of the requesting
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 it has the authority, subject to the terms
of Article 1, to obtain and provide, through its competent authority and
upon request:


     (a)   information held by banks, other financial institutions, and any
           person, including nominees and trustees, acting in an agency or
           fiduciary capacity;
     (b)    (i)   information regarding the legal and beneficial ownership of
                  companies, partnerships and other persons and, within the
                  constraints of Article 1, any other persons in an ownership
                  chain, including in the case of collective investment
                  schemes, information on shares, units and other interests;
           (ii) in the case of trusts, information on settlors, trustees,
                  protectors and beneficiaries; and
           (iii) in the case of foundations, information on founders,
                  members of the foundation council and beneficiaries.


5    This Agreement does not create an obligation for a Party 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.


6    Any request for information shall be formulated with the greatest
detail necessary and shall specify in writing;


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     (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 and the form in which
           the requesting Party would prefer to receive it;
     (d)   the tax purpose for which the information is sought;
     (e)   the reasons for believing that the information requested is
           foreseeably relevant to the tax administration and enforcement
           of the requesting Party, with respect to the person identified in
           subparagraph (a) of this paragraph;
     (f)   grounds for believing that the information requested is present
           in the requested Party or is in the possession of or obtainable
           by a person within the jurisdiction of the requested Party;
     (g)   to the extent known, the name and address of any person
           believed to be in possession of or able to obtain the information
           requested;
     (h)   a statement that the request conforms with the laws and
           administrative practice of the requesting Party, that if the
           requested information was within the jurisdiction of the
           requesting Party then the competent authority of the requesting
           Party would be able to obtain the information under the laws of
           the requesting Party or in the normal course of administrative
           practice and that it is in conformity with this Agreement; and
     (i)   a statement that the requesting Party has pursued all means
           available in its own territory to obtain the information, except
           where that would give rise to disproportionate difficulty.


7    The competent authority of the requested Party shall acknowledge
receipt of the request to the competent authority of the requesting Party
and shall use its best endeavours to forward the requested information to
the requesting Party with the least possible delay.


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                                  Article 5
                        Tax Examinations Abroad


1    With reasonable notice, the requesting Party may request that the
requested Party allow representatives of the competent authority of the
requesting Party to enter the territory of the requested Party, to the extent
permitted under its domestic laws, to interview individuals and examine
records with the prior written consent of the individuals or other persons
concerned. The competent authority of the requesting Party shall notify the
competent authority of the requested Party of the time and place of the
intended meeting with the individuals concerned.


2    At the request of the competent authority of the requesting Party, the
competent authority of the requested Party may permit representatives of
the competent authority of the requesting Party to attend a tax
examination in the territory of 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 soon
as possible, notify the competent authority of the requesting Party of the
time and place of the examination, the authority or person authorised to
carry out the examination and the procedures and conditions required by
the requested Party for the conduct of the examination. All decisions
regarding the conduct of the examination shall be made by the requested
Party conducting the examination.


                                  Article 6
                   Possibility of Declining a Request


1    The competent authority of the requested Party may decline to
assist:


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     (a)   where the request is not made 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 public policy (ordre public) of the requested Party.


2    This Agreement shall not impose upon a requested Party any
obligation to provide information subject to legal privilege, or any trade,
business, industrial, commercial or professional secret or trade process,
provided that information described in Article 4(4) shall not by reason of
that fact alone be treated as such a secret or trade process.


3    A request for information shall not be refused on the ground that the
tax claim giving rise to the request is disputed by the taxpayer.


4    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 normal course of
administrative practice.


5    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 7
                               Confidentiality


1    All information provided and received by the competent authorities of
the Parties shall be kept confidential.


2    Information provided to the competent authority of the requesting
Party may not be used for any purpose other than for the purposes stated
in Article 1 without the prior written consent of the requested Party.


3    Information shall be disclosed only to persons or authorities
(including courts and administrative bodies) concerned with the purposes
specified in Article 1, and used by such persons or authorities only for
such purposes, including the determination of any appeal. For these
purposes, information may be disclosed in public court proceedings or in
judicial decisions.


4    Information provided to a requesting Party under this Agreement may
not be disclosed to any other jurisdiction.


                                  Article 8
                                    Costs


     Unless the competent authorities of the contracting Parties otherwise
agree, indirect costs incurred in providing assistance shall be borne by the
requested Party, and direct costs incurred in providing assistance
(including reasonable costs of engaging external advisers in connection
with litigation or otherwise) shall be borne by the requesting 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


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of the requesting Party in advance if the costs of providing information with
respect to a specific request are expected to be significant.


                                  Article 9
                 No Prejudicial or Restrictive Measures


1     Neither of the Parties shall apply prejudicial or restrictive measures
based on harmful tax practices to residents or nationals of either Party so
long as this Agreement is in force and effective.


2     For the purposes of this Article, a "prejudicial or restrictive measure"
based on harmful tax practices means a measure applied by one Party to
residents or nationals of either Party on the basis that the other Party does
not engage in effective exchange of information and/or because it lacks
transparency in the operation of its laws, regulations or administrative
practices, or on the basis of no or nominal taxes and one of the preceding
criteria.


3     Without limiting the generality of paragraph 2, the term "prejudicial or
restrictive measure" includes the denial of a deduction, credit or
exemption, the imposition of a tax, charge or levy, or special reporting
requirements.


4     A "prejudicial or restrictive measure" does not include generally
applicable measures, applied by either Party, such as Controlled Foreign
Company rules, Foreign Investment Fund rules, transfer pricing rules, thin
capitalisation rules, or general information reporting rules that relate to the
disclosure of information from other countries or jurisdictions, or
transactions with such countries or jurisdictions, such as record keeping
requirements imposed on foreign owned subsidiaries to ensure access to
information concerning parent companies.


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                                    Article 10
                       Mutual Agreement Procedures


1    Where difficulties or doubts arise between the Parties regarding the
implementation or interpretation of this Agreement, the respective
competent authorities shall use their best efforts to resolve the matter by
mutual agreement.


2    In addition to the endeavours referred to in paragraph 1, the
competent authorities of the Parties may mutually agree on the
procedures to be used under this Agreement.


3    The Parties shall endeavour to agree on other forms of dispute
resolution should this become necessary.


                                    Article 11
                                Entry into Force


     This Agreement shall enter into force when each Party has notified
the other in writing through the appropriate channel of the completion of its
necessary internal procedures for entering into force. Upon the date of
entry into force, it shall have effect:


     (a)   for criminal tax matters on that date; and
     (b)   for all other matters covered in Article 1 on that date, but only in
           respect of taxable periods beginning on or after that date or,
           where there is no taxable period, all charges to tax arising on or
           after that date.


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