Överenskommelse den 21 maj 1999 om administrativ assistans mellan Sverige och Polen
De behöriga myndigheterna i Sverige och Polen har den 21 maj 1999 ingått följande överenskommelse om administrativ assistans mellan Sverige och Polen.
WORKING AGREEMENT BETWEEN THE MINISTRY OF FINANCE OF THE REPUBLIC OF POLAND AND THE NATIONAL TAX BOARD OF SWEDEN FOR THE CONDUCT OF SIMULTANEOUS TAX EXAMINATION
Desiring to increase the efficiency of the efforts to prevent the avoidance and evasion of taxation,
referring to Article 8 of the OECD/EC Convention on Mutual Assistance in Tax Matters, signed in Strasbourg on 25th January 1988, and
in virtue of the provisions of the Treaty between the Government of the People_s Republic of Poland and the Government of the Kingdom of Sweden for the avoidance of double taxation with the respect to taxes on income and capital, signed on the 5th June 1975, hereinafter called Treaty,
The Minister of Finance of the Government of the Republic of Poland and the National Tax Board, hereinafter called the Contracting Parties or separately the Contracting Party, decide to conclude the following Working Agreement, hereinafter called Agreement:
The Contracting Parties decide that for the purpose of this Agreement the expression ”simultaneous tax examination” means an examination by virtue of arrangement between the Contracting Parties to examine simultaneously and independently, each on its own territory, the tax affairs of (a) taxpayer(s), with a view to exchange all information necessary for simultaneous examinations.
The Contracting Parties agree that disclosure of information obtained by means of simultaneous tax examination falls within provisions of the Treaty and Convention mentioned in the preamble, and shall be used only for tax purposes.
Simultaneously the Contracting parties agree that information obtained in the framework of the Convention could serve as evidence in criminal courts, without the permission of the second Contracting Party, as it is provided by Article 4(2) of the Convention.
The Contracting Parties agree that any exchange of information – spontaneous or requested – followed from such examination, shall be made through the competent authorities determined in the Treaty.
The Contracting Parties decide that the main purpose of simultaneous tax examinations is ”inter alia”:
2.1 To determine a taxpayer’s correct liability in cases where:
- costs are charged in one contracting State and profits are allocated between taxpayers in different tax jurisdictions or more generally transfer pricing issues are involved,
- apparent tax avoidance or evasion techniques or patterns involving substance versus form transactions, price manipulations, cost allocations and other actions are identified,
- unreported income is identified,
- illegal payments or actions related to the introduction into the financial system of values originating from illegal or undisclosed sources are identified (money laundering and other similar activities),
- transactions with tax havens and tax avoidance or evasion schemes involving tax havens are identified.
2.2 To facilitate an exchange of information on:
- multinational business practices, transactions between associated entities, fiscal non-compliance trends that may be particular to an industry or group of industries,
- cost sharing arrangements,
- on profit allocation methods in typical associated entities transactions and new financial instruments.
Simultaneous tax examinations are not intended to be a substitute for the mutual agreement procedure provided for under Article on the Mutual Agreement Procedure of the Treaty mentioned in the preamble of the present Agreement.
3 Case selection and examination procedure
3.1 The competent authority of each State will identify independently taxpayers it intends to propose for a simultaneous examination.
3.2 The competent authority of each Contracting Party will inform its counterpart in the other State on its respective choice of cases for simultaneous examinations, explaining, as far as possible, why it has chosen these cases and provide the information on legal limitations applicable to the cases proposed for simultaneous examinations.
3.3 Each Contracting Party of this Agreement will determine if it wishes to participate in a simultaneous examination.
3.4 The competent authority of each Contracting Party requested to participate in a simultaneous examination will consider provided information in conjunction with information from its own sources and will submit in writing to its counterpart its confirmation or refusal to undertake a specific simultaneous tax examination (mentioning the taxpayers, taxes and tax years involved).
Before making such confirmation or refusal, the competent authority of the requested Contracting Party will seek to obtain any information that it requires in order to reach a decision, either under its domestic laws or under the provisions of the appropriate Article on Exchange of Information of the Treaty or under the provisions of the Convention mentioned in the preamble.
The same requesting and requested competent authority will indicate a designated representative who will have the functional responsibility for directing and co-ordinating the examination.
The competent authorities may present to each other requests for exchange of information or provide each other with information spontaneously under and in conformity with the provisions of the proper Convention or Treaty.
3.5 The designated representatives of the competent authority shall take care of the practical aspects of the simultaneous examination, and in particular the: timetable, time limits for examinations and will also indicate the Contracting Party co-ordinating the simultaneous examination.
3.6 The competent authority of each Contracting Party may in a declaration addressed to the competent authority of the other Contracting Party indicate the obligation, resulting from domestic laws, to inform its citizens or residents on the exchange of information pursuant to the article on Exchange of Information of the Treaty or under the provisions of the Convention mentioned in the preamble.
4 Criteria for case selection
The Contracting Parties decide the following:
4.1 Any case selected for a simultaneous examination will generally involve taxpayers having operations either directly or through associated enterprises or through permanent establishments in the territory of each Contracting Party or through representations.
4.2 The criteria taken into consideration in determining whether a case is selected for simultaneous tax examinations include ”inter alia”:
- the scale of its worldwide operations,
- the extent of transactions in the states of the Contracting Parties,
- available indications of:
- tax avoidance and evasion,
- substantial non-compliance of tax law in the state of the Contracting Party,
- manipulation of transfer prices,
- other forms of international co-operation which, may generate additional revenues of incomes or accrual of assets or increase of their value in the Contracting Parties,
- economic performance of a tax payer in relation to another taxpayers carrying on a similar business, over the same period of time and relevant market, which is significantly worse than it might be expected, for instance:
- the economic performance does not reflect appropriate profits when measured against sales, total assets, etc.
- cases where the taxpayer consistently shows losses, especially long term losses,
- cases where the taxpayer, regardless of profitability, paid little or no tax over the relevant period,
- transactions involving tax havens,
- situations where the competent authorities consider it is in the interest of the tax administrations concerned in order to promote international tax compliance.
The Contracting Parties agree the following:
5.1 Examinations shall be conducted separately within the framework of national law and practice solely by tax administration officials of each Contracting Party using the available exchanges of information provisions. The direct participation of the tax administration officials of one Contracting Party in the examination carrying on by tax administration officials of the other Contracting Party at the enterprises (permanent establishments) settled within the territory of the State of the other Contracting Party shall not be possible.
5.2 The representatives of the competent authorities of the two Contracting Parties shall contact each other through the competent authorities.
5.3 The competent authorities can decide that their representatives shall be able to contact each other by telephone or by direct consultations.
Nevertheless, the written exchange of information shall be provided only by the competent authorities.
6 Planning the simultaneous tax examination
The Contracting Parties agree that before the start of the tax examination the representatives of the competent authority in charge of the case will consider with their counterparts in the other State the examination plans of each State, possible issues to be developed and target dates. The Contracting Parties decide that it is appropriate to hold co-ordination meetings to plan and follow closely the performance of the simultaneous examination. The examination plans shall not be exchanged.
7 Conducting the simultaneous examination
The Contracting Parties indicate that simultaneous tax examinations require the co-operation of tax administration officials located in each Contracting Party who will simultaneously but independently examine the taxpayers within their jurisdiction. They will try as far as possible to synchronise their work schedules.
8 Discontinuing the simultaneous tax examination
If either Contracting Party concludes that it is no longer beneficial to continue the simultaneous examination of a case, it may withdraw by notifying the other Contracting Party.
9 Concluding the simultaneous tax examination
The Contracting Parties agree that the simultaneous tax examination will be concluded after co-ordination and consultation between the competent authorities of each Contracting Party. Issues pertaining to double taxation raised by the examination are reserved to the Mutual Agreement Procedure.
10 Miscellaneous provisions
This Agreement has been done in two originals, in Polish and English languages, both text being equally authentic. In case of any divergency of interpretation, the English text shall prevail.
This Arrangement may be modified at any time by agreement between the competent authorities.