Agreement Norway - Bermuda

Agreement between the Kingdom of Norway and Bermuda as authorised by the Government of the United Kingdom of Great Britain and Northern Ireland on the exchange of information with respect to taxes.

Whereas   the Government of the Kingdom  of Norway welcomes the conclusion of this Agreement with the Government  of Bermuda, which represents an important step in delivering the  commitment it made to the OECD in 2000 to respect the principles  of transparency and exchange of information. The Government of  the Kingdom of Norway considers that this Agreement demonstrates Bermuda’s  commitment to high standards for effective exchange of information  with respect to both criminal and civil taxation matters within  an acceptable timeline, consistent with the aims and objectives  of the OECD Global Forum on Taxation. The Government of the Kingdom  of Norway recognizes that Bermuda is committed to combating tax  abuse by putting in place mechanisms which enhance transparency;

Whereas   the Government of the Kingdom  of Norway recognizes that this Agreement is an important contribution  to meeting the need for countries to develop a global information  exchange network to combat effectively international tax evasion;

Whereas   by entering into the Agreement,  the Government of the Kingdom of Norway recognizes that, according  to the OECD criteria, Bermuda is not considered to be engaging in  any harmful tax practices, nor is it considered to be a tax haven,  in relation to the Government of the Kingdom of Norway;

The Government of the Kingdom of Norway and the Government of  Bermuda, desiring to facilitate the exchange of information with  respect to taxes

have agreed as follows:

Article 1

Object and scope of the Agreement

The competent authorities of the Parties shall provide assistance  through exchange of information that is relevant to the administration  or enforcement of the domestic laws of the Parties concerning taxes  covered by this Agreement. Such information shall include information  that is relevant to the determination, assessment and collection  of such taxes, the recovery and enforcement of tax claims, or the  investigation or prosecution of tax matters. Information shall be  exchanged in accordance with the provisions of this Agreement and shall  be treated as confidential in the manner provided in Article 8.

Article 2

Jurisdiction

A requested Party is not obligated to provide information which  is neither held by its authorities nor in the possession or control  of persons who are within its territorial jurisdiction.

Article 3

Taxes covered

  1. The existing taxes which are the subject  of this Agreement are direct taxes of every kind and description  imposed in the Parties.

  2. This Agreement shall also apply to any identical or substantially  similar taxes imposed after the date of signature of this Agreement  in addition to, or in place of, the existing taxes. The competent  authorities of the Parties shall notify each other of any substantial  changes to the taxation and related information gathering measures covered  by this Agreement.

Article 4

Definitions

  1. For the purposes of this Agreement,  unless otherwise defined:

    1. «Norway» means the  Kingdom of Norway, and includes the land territory and internal waters;  the territorial sea and the area beyond the territorial sea where  the Kingdom of Norway, according to Norwegian legislation and in  accordance with international law, may exercise her rights with  respect to the seabed and subsoil and their natural resources; the  term does not comprise Svalbard, Jan Mayen and the Norwegian dependencies  («biland»);

    2. «Bermuda» means the Islands of Bermuda;

    3. «applicant Party» means the Party requesting  for or having received information from the requested Party;

    4. «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;

    5. «company» means any body corporate or any  entity that is treated as a body corporate for tax purposes;

    6. «competent authority» means, in the case  of Norway, the Minister of Finance or the Minister’s authorised  representative or the authority which is designated as a competent  authority for the purpose of this Agreement and, in the case of  Bermuda, the Minister of Finance or an authorised representative  of the Minister;

    7. «Party» means Norway or Bermuda as the context  requires;

    8. «information» means any fact, statement  or record in any form whatever;

    9. «information-gathering measures» means laws  and administrative or judicial procedures that enable a Party to  obtain and provide the requested information;

    10. «national» means:

      1. in the case of Norway,

        (A) any Norwegian citizen, and

        (B) any legal person, partnership, association or other entity  deriving its status as such from the laws in force in Norway; and

      2. in the case of Bermuda, any legal person, partnership, company,  trust, state, association or other entity deriving its status as  such from the laws in force in Bermuda;

    11. «person» includes an individual, a company and  any other body of persons;

    12. «principal class of shares» means the  class or classes of shares representing a majority of the voting  power and value of the company;

    13. «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;

    14. «recognised stock exchange» means any stock  exchange agreed upon by the competent authorities of the Parties;

    15. «requested Party» means the Party requested  to provide information;

    16. «resident» means:

      1. in the case of Norway, any person who, under  the laws of Norway, is liable to tax therein by reason of his domicile,  residence, place of management or any other criterion of a similar  nature, and also includes the state itself and any political subdivision  or local authority thereof. This term, however, does not include  any person who is liable to tax in Norway in respect only of income  from sources in Norway;

      2. in the case of Bermuda, an individual who is ordinarily  resident of Bermuda; and a company, partnership, trust or association  created under the laws of Bermuda;

    17. «serious tax evasion» means willfully,  with dishonest intent to defraud the public revenue, evading or  attempting to evade any tax liability where an affirmative act or  omission constituting an evasion or attempted evasion has occurred.  It also includes intentionally obstructing, hindering, intimidating  or resisting public officials. The tax liability must be of a significant  or substantial amount, either as an absolute amount or in relation  to an annual tax liability, and the conduct involved must either  constitute a systematic effort or pattern of activity designed or  tending to conceal pertinent facts from or provide inaccurate facts  to the tax authorities of either Party, or constitute falsifying  or concealing identity. The competent authorities shall agree on  the scope and extent of matters falling within this definition;  and

    18. «tax» means any tax to which this Agreement  applies.

  2. The term «relevant» wherever used in the Agreement  with respect to information, shall be interpreted in a manner that  ensures that information will be considered relevant notwithstanding  that a definite assessment of the pertinence of the information  to an ongoing investigation could only be made following the receipt of  the information.

  3. As regards the application of this Agreement at any time  by a Party, any term not defined herein shall, unless the context  otherwise requires, have the meaning that it has at the time under  the law 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 5

Exchange of information upon request

  1. The competent authority of the requested  Party shall provide upon request information for the purposes referred  to in Article 1. Such information shall be exchanged without regard  to whether the conduct being investigated would constitute a crime  under the laws of the requested Party if such conduct occurred in  the requested Party.

  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  all relevant information gathering measures to provide the applicant  Party with the information requested, notwithstanding that the requested  Party may not need such information for its own tax purposes.

  3. If specifically requested by the competent authority of  the applicant 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 its competent authority, for  the purposes of this Agreement, has the authority to obtain and  provide upon request:

    1. information held by banks, other financial institutions,  and any person, including nominees and trustees, acting in an agency or  fiduciary capacity;

    2. information regarding the ownership of companies, partnerships  and other persons, including, within the constraints of Article 2,  ownership information on all such persons in an ownership chain;  in the case of trusts, information on settlors, trustees, beneficiaries,  and the position in an ownership chain; and in the case of foundations, information  on founders, members of the foundation council and beneficiaries  and the position in an ownership chain.

  5. This Agreement does not create an obligation on the Parties  to obtain or provide:

    1. 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;

    2. information relating to a period more than six years prior  to the tax period under consideration;

    3. information unless the applicant Party has pursued all means  available in its own Party to obtain the information, except those  that would give rise to disproportionate difficulties;

    4. information in the possession or control of a person other  than the taxpayer that does not directly relate to the taxpayer.

  6. Where the applicant Party requests information with respect  to a matter which does not constitute serious tax evasion, a senior  official of its competent authority shall certify that the request  is relevant to, and necessary for, the determination of the tax  liability of the taxpayer under the laws of the applicant Party.

  7. If information is requested that relates to a person that  is not a resident, nor a national, of one or other of the Parties,  it also shall be established to the satisfaction of the competent  authority of the requested Party that such information is necessary  for the proper administration and enforcement of the fiscal laws  of the applicant Party.

  8. The competent authority of the applicant Party shall provide  the following information to the competent authority of the requested  Party when making a request for information under this Agreement  to demonstrate the relevance of the information sought to the request:

    1. the identity of the taxpayer under  examination or investigation;

    2. grounds for believing that the information requested  is in the possession or control of a person subject to the jurisdiction  of the requested Party;

    3. to the extent known, the name and address of any person  believed to be in possession or control of the information requested;

    4. a statement that the request conforms to the law and  administrative practice of the applicant Party and would be obtainable  by the applicant Party under its laws in similar circumstances,  both for its own tax purposes and in response to a valid request  from the requested Party under this Agreement;

    5. a statement that the applicant Party has pursued all  means available in its own Party to obtain the information, except  those that would give rise to disproportionate difficulties;

    and, to the fullest extent possible:

    • f) the nature and type of the information  requested, including a description of the specific evidence, information  or other assistance sought and the form, in which the applicant Party  prefers to receive the information;

    • g) the tax purposes for which the information is sought  and why it is relevant to the determination of the tax liability  of a taxpayer under the laws of the applicant Party;

    • h) information that such taxpayer is a resident in, or  national of, one of the Parties, or that it is necessary for the  determination of the tax liability of a taxpayer under the laws  of the applicant Party;

    • i) the period of time with respect to which the information  is required for the tax purposes.

  9. The competent authority of the requested Party shall forward  the requested information as promptly as possible to the applicant  Party. To ensure a prompt response, the competent authority of the  requested Party shall:

    1. confirm receipt of a request in writing  to the competent authority of the applicant Party and shall notify  the competent authority of the applicant Party of deficiencies in  the request, if any, within 60 days of the receipt of the request;  and

    2. if the competent authority of the requested Party has been  unable to obtain and provide the information within 90 days of receipt  of the request, including if it encounters obstacles in furnishing  the information or it refuses to furnish the information, it shall immediately  inform the applicant Party, explaining the reason for its inability,  the nature of the obstacles or the reasons for its refusal.

Article 6

Tax examinations abroad

  1. The requested Party may allow, to the  extent permitted under its domestic law, representatives of the  competent authority of the applicant Party to enter the territory  of the requested Party to interview individuals and examine records with  the written consent of the persons concerned. The competent authority  of the applicant Party shall notify the competent authority of the requested  Party of the time and place of the meeting with the individuals  concerned.

  2. At the request of the competent authority of the applicant  Party, the competent authority of the requested Party may allow  representatives of the competent authority of the applicant Party to  be present at the appropriate part of a tax examination in the requested  Party.

  3. If the request referred to in paragraph 2 is acceded to,  the competent authority of the requested Party conducting the examination  shall, as soon as possible, notify the competent authority of the  applicant Party about the time and place of the examination, the  authority or official designated to carry out the examination and  the procedures and conditions required by the requested Party for  the conduct of the examination. All decisions with respect to the  conduct of the tax examination shall be made by the requested Party  conducting the examination.

Article 7

Possibility of declining a request

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

    1. the request is not made in conformity  with this Agreement;

    2. the disclosure of the information requested would be contrary  to the public policy of the requested Party («ordre public»);

    3. the applicant Party would not be able to obtain the information:

      1. under its own laws for purposes of administration  or enforcement of its own tax laws or

      2. in response to a valid request from the requested Party  under this Agreement.

  2. The provisions of this Agreement shall not impose on a Party  the obligation to supply information which would disclose any trade,  business, industrial, commercial or professional secret or trade  process. Notwithstanding the foregoing, information of the type  referred to in paragraph 4 of Article 5 shall not be treated as such  a secret or trade process merely because it meets the criteria in  that paragraph.

  3. The provisions of this Agreement shall not impose on a Party  the obligation to obtain or provide information which would reveal  confidential communications between a client and an attorney, solicitor  or other admitted legal representative where such communications:

    1. are communications between a professional legal  adviser and a client made in connection with the giving of legal  advice to the client;

    2. are communications between a professional legal adviser  and a client, professional legal adviser acting for the client and  another person, or the client and another person made in connection  with or in contemplation of legal proceedings and for the purposes  of such proceedings; and

    3. include items enclosed with or referred to in such communications  and made:

      1. in connection with the giving of legal  advice; or

      2. in connection with or in contemplation of legal proceedings  and for the purposes of such proceedings, when the items are in  the possession of a person who is entitled to possession of them.

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

  5. The requested Party may decline a request for information  if the information is requested by the applicant Party to administer  or enforce a provision of the tax law of the applicant Party, or  any requirement connected therewith, which discriminates against  a national of the requested Party as compared with a national of the  applicant Party in the same circumstances.

Article 8

Confidentiality

Any information received by a Party under this Agreement shall  be treated as confidential and may be disclosed only to persons  or authorities (including courts and administrative bodies) in the  jurisdiction of the Party concerned with the assessment or collection  of, the enforcement or prosecution in respect of, or the determination  of appeals in relation to, the taxes covered by this Agreement,  and to persons concerned with the regulation of disclosure and use  of information. Such persons or authorities shall use such information  only for such purposes. They may disclose the information in public  court proceedings or in judicial decisions. The information may  not be disclosed to any other person or entity or authority or any  other jurisdiction without the express written consent of the competent  authority of the requested Party.

Article 9

Safeguards

The rights and safeguards secured to persons by the laws or administrative  practices of the requested Party remain applicable. The rights and  safeguards may not be applied by the requested Party in a manner  that unduly prevents or delays effective exchange of information.

Article 10

Costs

Incidence of costs incurred in providing assistance (including  reasonable costs of third parties and external advisors in connection  with litigation or otherwise) shall be agreed by the competent authorities  of the Parties.

Article 11

No prejudicial or restrictive measures

  1. In the event that a Party has reason  to believe that the other Party has introduced prejudicial or restrictive  measures based on harmful tax practices to residents or nationals  of the other Party, both Parties shall immediately initiate competent  authority proceedings to resolve the matter.

  2. 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 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 the term «prejudicial  or restrictive measures» it includes the denial of a deduction,  credit or exemption, the imposition of a tax, charge or levy, or  special reporting requirements. Such measures include any measure  which relate, directly or indirectly, to taxation matters. However,  they do not include any generally applicable measure, applied by  either Party against, amongst others, members of the OECD generally.

Article 12

Mutual Agreement Procedure

  1. The competent authorities of the Parties  shall jointly endeavour to resolve any difficulties or doubts arising  as to the interpretation or application of this Agreement.

  2. In addition to the endeavours referred to in paragraph 1,  the competent authorities of the Parties may mutually determine  the procedures to be used under Articles 5 and 6.

  3. The competent authorities of the Parties may communicate  with each other directly for the purposes of this Article.

Article 13

Entry into Force

This Agreement shall enter into force on the thirtieth day after  the later of the dates on which each of the Parties has notified  the other in writing that the formalities constitutionally or otherwise  required in their respective Party have been complied with. Upon  the date of entry into force, it shall have effect:

  1. for criminal tax matters on that date;  however, no earlier than January 1st, 2010; and

  2. for all other matters covered in Article 1 on that date;  however, no earlier than January 1st, 2010, 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.

Article 14

Termination

  1. Either Party may terminate the Agreement  by serving a notice of termination on the other Party.

  2. Such termination shall become effective on the first day  of the month following the expiration of a period of six months  after the date of receipt of notice of termination by the other Party.

  3. In the event of termination, both Parties shall remain bound  by the provisions of Article 8 with respect to any information obtained  under the Agreement.

In witness whereof the undersigned being duly authorised thereto,  have signed this Agreement.

Done at Washington this 16th day of April 2009, in duplicate  in the English language.

For the Government of   The Kingdom of Norway: For The Government of Bermuda:

Protocol between the Kingdom of Norway  and Bermuda concerning the interpretation   or application of the agreement between the Kingdom of Norway and  Bermuda as   authorised by the United Kingdom of Great   Britain and Northern Ireland on the exchange of information relating  to tax matters

The Government of the Kingdom of Norway and the Government of  Bermuda (the «Parties»), desiring to facilitate  the exchange of information with respect to taxes, have reached  the following understanding:

This Protocol shall form an integral part of the Agreement and  shall enter into force in accordance with Article 13 at the same  time the Agreement enters into force.

The Competent Authorities may, by mutual arrangement amend this  Protocol at any time in writing. The amended Protocol will come  into effect on the date of the final letter arranging the amendment.

The Government of Bermuda will take the measures necessary to  repeal any provision of its domestic legislation that requires  that information is physically present for the purposes of fulfilling this  Agreement. The Government of the Kingdom of Norway in turn will  pursue all means available in its own territory to obtain the information,  except those that would give rise to disproportionate difficulties.

In relation to paragraphs 6, 7 and 8 h) of Article 5 the term «necessary» shall  not be interpreted to restrict the general objectives as set out  in Article 1. Certification by a senior official shall be sufficient  to meet the requirements of those provisions.

In witness whereof the undersigned being duly authorised thereto,  have signed this Protocol.

Done at Washington this 16th day of April 2009, in duplicate  in the English language.

For the Government of   The Kingdom of Norway: For The Government of Bermuda:
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