SKV M 2004:19
Överenskommelse den 3 september 2004 om administrativ assistans mellan Sverige och Nederländerna
De behöriga mydigheterna i Sverige och Nederländerna har den 3 september 2004 ingått följande överenskommelse om administrativ assistans mellan Sverige och Nederländerna.
MEMORANDUM OF UNDERSTANDING BETWEEN THE SWEDISH TAX AGENCY AND THE DIRECTORATE-GENERAL OF THE TAX AND CUSTOMS ADMINISTRATION OF THE NETHERLANDS FOR THE STREAMLINING AND INTENSIFICATION OF MUTUAL ASSISTANCE IN MATTERS OF DIRECT TAXATION
The Swedish Tax Agency and the Directorate-General of the Tax and Customs Administration of the Netherlands,
Further to the provisions of Council Directive No. 77/799/EEC of 19 December 1977, as amended by Council Directives No. 79/1070/EEC of 6 December 1979 and N. 92/12/EEC of 25 February 1992 concerning mutual assistance by the Competent Authorities of the Member States in the field of direct and indirect taxation (hereinafter referred to as ”Directive 77/799/EEC”),
And the Convention between the Kingdom of Sweden and the Kingdom of the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion in respect of taxes on income and capital of 18 June 1991 (hereinafter referred to as ”the Convention”),
And having regard to:
The Convention on Mutual Administrative Assistance in Tax Matters of 25 January 1988 (hereinafter referred to as ”the COE/OECD Convention”),
And both States having the desire to improve and intensify mutual assistance between Sweden and the Netherlands,
Have come to the following understanding:
CHAPTER I. COMPETENT AUTHORITIES
For the application of this Memorandum of Understanding the Competent Authorities are:
Swedish Tax Agency,
SE-171 94 Solna
In the Netherlands:
The Fiscal Information and Investigation Service/Economic Investigation Service,
2003 BR Haarlem
CHAPTER II. THE PRESENCE OF TAX OFFICIALS OF ONE STATE IN THE TERRITORY OF THE OTHER STATE
This Chapter is based on Article 6 of Directive 77/799/EEC, Article 28 of the Convention and Article 9 of the COE/OECD Convention.
A request to allow tax officials of one State to be present during an examination on the territory of the other State would be submitted in special cases. This includes in particular:
- cases in which there are indications of crossborder irregularities or fraud;
- complex cases which make the presence of the tax officials desirable;
- cases where there is a risk of the time limit being exceeded, and where the presence of the tax officials can accelerate the examination;
- examinations in the framework of an agreed bilateral or multilateral examination, including simultaneous tax examinations. The procedures for simultaneous tax examinations are described in the appendix of this Memorandum of Understanding.
The Competent Authorities of one of the States may allow the presence in its territory of tax officials of the other State in cases other than those described in Paragraph II.2.
Where a request is granted, it is on the understanding that the requesting State would admit tax officials from the requested State in similar circumstances.
CONDITIONS FOR SUBMITTING A REQUEST
A request for the presence of tax officials will be submitted in writing by the Competent Authority of the requesting State and will form part of a request for information. The Competent Authority of the requested State will make a decision with respect to the request as soon as possible, and in any event within three months after receiving the request. The requested State may reject the request only after consultation with the requesting State and will indicate the reasons for such a decision.
The request will explain why the presence of tax officials is necessary and will give a short description of the case.
THE EXAMINATION AND THE PROVISION OF INFORMATION
If the request is granted, the Competent Authority of the requested State will, as soon as possible, notify the Competent Authority of the requesting State of the time and place of the examination and the authority or official designated to carry out the examination.
The examination will be carried out only by tax officials from the requested State. The visiting tax officials will be authorised to be present at an examination carried out according to the request for information. The visiting officials will comply with the legislation of the requested State.
The visiting tax officials may be present only during those parts of the examination in the requested State which are relevant to the examination in the requesting State.
The visiting tax officials may not make any decision on questions regarding the examination in the requested State, but they may put forward suggestions concerning such questions to the authority or official designated to carry out the examination. Any decision regarding such a suggestion will be made by the authority or official of the requested State.
The information gathered during the examination has to be exchanged by the Competent Authorities in accordance with the exchange of information provisions.
CHAPTER III. THE AUTOMATIC EXCHANGE OF INFORMATION AND THE INTENSIFICATION OF SPONTANEOUS EXCHANGE OF INFORMATION
The Competent Authorities of Sweden and the Netherlands will automatically provide each other with the information available as listed in Paragraph III.2 on the basis of Articles 3 and 9 of Directive 77/799/EEC, Article 28 of the Convention and Article 6 of the COE/OECD Convention and in accordance with the following.
The Competent Authorities will intensify the spontaneous exchange of information as mentioned in Paragraph III.3 on the basis of Articles 4 and 9 of Directive 77/799/EEC, Article 28 of the Convention and Article 7 of the COE/OECD Convention.
A: AUTOMATIC EXCHANGE OF INFORMATION
- The Competent Authorities will automatically provide each other with information on the following income and/or data:
- income consisting of salaries, wages and other similar remuneration as referred to in Articles 15 and 19 of the Convention;
- income from independent personal services or other activities of an independent character as defined in Article 14 of the Convention;
- pensions, other similar remuneration, annuities and social security payments (such as the Netherlands AOW, WAO, ANW) as referred to in Articles 18 and 19 of the Convention;
- income of entertainers and sportsmen as referred to in Article 17 of the Convention;
- directors’ fees and other payments as referred to in Article 16 of the Convention;
- royalties as referred to in Article 12, paragraph 2 of the Convention;
- VAT refunds obtained through the application of Council Directive 79/1072/EEC of 6 December 1979.
B: INTENSIFICATION OF SPONTANEOUS EXCHANGE OF INFORMATION
In the framework of this chapter it is also agreed that the spontaneous exchange of information for direct and indirect taxes will be intensified. This applies especially in the case of the following categories:
- commissions, fees, brokers’ fees and other remunerations paid to individuals or companies;
- a change of identification data, such as address – including seat/head office of companies – when a person moves from one of the States to the other;
- the ownership of immovable property as referred to in Article 6 of the Convention.
CONDITIONS FOR THE EXCHANGE OF INFORMATION
If the information provided is found to be incorrect or incomplete, the Competent Authority will make this known as soon as possible. The same will apply to technical problems or difficulties in converting the data provided.
The information referred to in Paragraph III.2 will be provided periodically as soon as possible and preferably by the end of each calendar year following the year when the income accrued.
The information referred to in Paragraph III.2 of this Memorandum of Understanding will be provided electronically in the OECD Standard Magnetic Format (latest version), where possible, or in paper format. The information to be exchanged will also include Tax Identification Numbers, VAT numbers and/or dates of birth, if available. This applies to numbers originating from both States.
CHAPTER IV. TERMS AND CONDITIONS
The provisions of Directive 77/799/EEC, the Convention and the COE/OECD Convention will apply with respect to secrecy and the limits to the exchange of information.
Requests for assistance and the information to be exchanged will be forwarded to the Competent Authorities.
Requests for assistance will be answered by the requested State, where possible, within six months. If a request cannot be answered or complied with within the said time limit, the requesting State will be informed thereof before the time limit expires.
Requests for assistance will be drawn up in English or in the language of the requested State, followed by a version in English. In urgent cases part or all of a request may be drafted in the language of the requesting State following consultation between the Competent Authorities.
CHAPTER V. APPLICATION AND TITLE
This Memorandum of Understanding will come into effect on the date of its signature by the signatories of Sweden or of the Netherlands, whichever is later. Chapter III will apply to information concerning income, assets, VAT refunds and identification data from the 2004 calendar year onwards. The States will make any required announcement of this Memorandum.
The signatories decide to meet in order to review this Memorandum of Understanding at the end of three years from the date of its coming into effect, unless they notify one another in writing that no review is necessary. However, at any time questions concerning revision may be taken up at the request of one of the signatories.
This Memorandum of Understanding may be terminated by written notification by either signatory and will cease to be operative six months after such notice has been received. In no case this Memorandum of Understanding will remain in effect any longer than the Convention.
This Memorandum of Understanding may be cited as the ”Memorandum of Understanding between Sweden and the Netherlands for the streamlining and intensification of mutual assistance in matters of direct taxation”.
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APPENDIX attached to Paragraph II.2.d of the Memorandum of Understanding between the Swedish Tax Agency and the Directorate-General of the Tax and Customs Administration of the Netherlands, describing the procedure of simultaneous tax examinations.
To achieve more efficiency in the exchange of information and to deal more effectively with cases of tax avoidance or tax evasion, the Competent Authorities have decided to establish a procedure for conducting simultaneous tax examinations of selected taxpayers, or groups of taxpayers, carrying on activities in both Sweden and the Netherlands.
Case selection and examination procedures
The selection procedure will be the following:
- Taxpayers will be independently identified for simultaneous tax examinations by the tax administration of each State.
- The Competent Authority of each State will inform the other Competent Authority of its choice of potential cases using the selection criteria described below. In a formal request for the exchange of information the Competent Authorities will inform each other about areas of interest in these cases.
- Each State will determine whether it wishes to participate in a particular simultaneous tax examination. Neither State, however, is obliged to co-operate in an examination proposed by the other State.
- If a Competent Authority accepts a counterpart’s proposal to conduct a simultaneous tax examination, that Competent Authority will confirm, in writing, the selection of the case and will indicate a designated representative who will have functional responsibility for directing the examination. After receiving the confirmation, the proposing Competent Authority also will indicate, in writing, a designated representative. In those cases where there is an agreement to conduct a simultaneous tax examination, the Competent Authority of each State will make – if necessary – an additional request for information to the other Competent Authority.
- The designated representative of the Competent Authority will decide areas and periods to be examined in the particular case selected, the timetable for the examination, and approaches to be taken. They will initiate exchange of specific information in accordance with the formal written requests.
- The Competent Authority of each State may, by a declaration addressed to its counterpart in the other State, indicate that, according to its internal legislation, it will inform its resident before transmitting the information concerned.
Criteria for case selection
Any case selected for simultaneous tax examination will involve (a) taxpayer(s) with activities in both States. The factors considered in determining whether a case is selected will primarily be, but will not be limited to:
- Indication of tax avoidance and evasion.
- Indication of substantial non-compliance of the tax laws in both States.
- Existence of transactions involving a ”tax haven”.
- Situations where the Competent Authorities consider it is in the interest of the tax administrations concerned in order to promote international tax compliance.
Examinations will be conducted separately within the framework of national law and practice solely by tax administration officials of each State.
Planning the examination
Before the start of the examination, the tax administration personnel in charge of the case will consider with their counterparts from the other State, the audit plans of each State, possible issues to be developed, and target dates. It may be appropriate to hold coordination meetings to plan and follow closely the performance of the simultaneous tax examination.
Conducting an examination
This procedure requires co-operation of personnel – conducted by the designated representatives – located in each State who will simultaneously but independently examine the taxpayer(s) within its jurisdiction. The primary responsibility for co-ordinating the examination and exchanges of information on a selected taxpayer will rest with the State agreed upon by the Competent Authorities. All exchanges of information must be made by the Competent Authorities within the terms of the Convention.
Discontinuing an examination
If either State concludes that a simultaneous tax examination is no longer beneficial, it may withdraw by notifying the other State of its withdrawal.
Concluding an examination
An examination will be concluded after co-ordination and consulting between the two States, in accordance with the existing procedures of each State. Simultaneous tax examinations are not intended to be a substitute for the mutual agreement procedure provided for under Article 27 of the Convention. Issues pertaining to double taxation raised by the examination are reserved to the mutual agreement procedure.