Agreement Norway - British Virgin Islands 2009

Agreement between the Kingdom of Norway and the British Virgin Islands for the exchange of information relating to taxes.

Whereas the Government of the Kingdom of Norway and the Government  of the British Virgin Islands («the Contracting Parties»)  recognise the need for cooperation and the exchange of information  in criminal and civil tax matters;

Whereas the Contracting 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 the Contracting Parties are competent  to negotiate and conclude a tax information exchange agreement;

Whereas the British Virgin Islands on the 2nd April 2002 entered  into a formal written commitment to the Organisation for  Economic Cooperation and Development’s (OECD) principles  of transparency and exchange of information and have subsequently  actively participated in the OECD Global Forum on Taxation;

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

Whereas the Contracting Parties recognise that they will never  engage in «fishing expeditions»;

Now, therefore, the Contracting Parties have concluded the following  Agreement which contains obligations on the part of the Contracting  Parties only:

Article 1

Scope of agreement

The competent authorities of the Contracting Parties shall provide  assistance through exchange of information that is foreseeably relevant  to the administration or enforcement of the domestic laws of the  parties concerning the taxes and the tax matters covered by this  Agreement, including information that is foreseeably relevant to  the determination, assessment, verification, enforcement, recovery  or collection of tax claims with respect to persons subject to such  taxes, or the investigation or prosecution of tax matters in relation  to such persons. 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

To enable the appropriate implementation of this Agreement, information  shall be provided in accordance with this Agreement by the competent  authority of the Requested Party:

  1. without regard to whether the person  to whom the information relates is a resident or national of a Contracting  Party, or whether the person by whom the information is held is  a resident or national of a Contracting Party; and

  2. provided that the information is present within the territory,  or in the possession or control of a person subject to the jurisdiction,  of the Requested Party.

Article 3

Taxes covered

  1. The taxes covered by this Agreement  are:

    1. in the case of the British Virgin Islands,

      1. the income tax;

      2. the payroll tax; and

      3. the property tax.

    2. in the case of Norway,

      1. the tax on general income;

      2. the tax on personal income;

      3. the special tax on petroleum income;

      4. the resource rent tax on income from production of hydroelectric  power;

      5. the withholding tax on dividends;

      6. the tax on Remuneration to non-resident artistes, etc.;  and

      7. the value added tax.

  2. This Agreement shall also apply to any identical or substantially  similar taxes imposed by either party after the date of signature  of this Agreement in addition to, or in place of, any of the taxes  listed in paragraph 1 of this Article. The competent authorities  of the Contracting Parties shall notify each other of any relevant  changes to the taxation and related information gathering measures  covered by this Agreement.

Article 4

Definitions

  1. In this Agreement unless the context  otherwise requires-

    1. «British Virgin Islands» means  the territory of the Virgin Islands as referred to in the Virgin  Islands Constitution Order 2007;

    2. «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»);

    3. «collective investment fund or scheme» means  any pooled investment vehicle irrespective of legal form;

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

    5. «competent authority» means

      1. in the case of the British Virgin Islands, the  Financial Secretary or a person or authority designated by him in  writing;

      2. in the case of Norway, the Minister of Finance or the Minister’s  authorised representative;

    6. «Contracting Party» means the British  Virgin Islands or Norway as the context requires;

    7. «criminal laws» means all criminal laws designated  as such under domestic law irrespective of whether contained  in the tax laws, the criminal code or other laws;

    8. «criminal tax matters» means tax matters involving  intentional conduct which is liable to prosecution under the criminal  laws of the Requesting Party;

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

    10. «information gathering measures» means laws,  regulations and administrative or judicial procedures that enable  a Requested Party to obtain and provide the requested information;

    11. «national» means –

      1. in relation to the British Virgin Islands, any  person who belongs to the British Virgin Islands by virtue of the  Virgin Islands Constitution Order 2007 (Statutory Instrument 2007  No. 1678) or has a certificate of residence of the British Virgin  Islands by virtue of the Immigration and Passport Ordinance (Cap.130);  and any legal person, partnership, association or other entity deriving  its status as such from the laws in force in the British Virgin  Islands;

      2. in relation to 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;

    12. «person» includes an individual, a company, or  any other body or group of persons;

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

    14. «public collective investment fund or scheme» means  any collective investment fund or scheme, in which the purchase,  sale or redemption of shares or other interests is not implicitly  or explicitly restricted to a limited group of investors;

    15. «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;

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

    17. «Requested Party» means the party to this Agreement  which is requested to provide or has provided information in response  to a request;

    18. «Requesting Party» means the party to  this Agreement submitting a request for or having received information  from the Requested Party;

    19. «tax» means any tax covered by this Agreement.

  2. As regards the application of this Agreement at any time  by a Contracting Party, any term not defined therein shall, unless  the context otherwise requires, have the meaning that it has at that  time under the law of that Contracting Party, any meaning under  the applicable tax laws of that Contracting Party prevailing over  a meaning given to the term under other laws of that Contracting  Party.

Article 5

Exchange of information upon request

  1. The competent authority of a Requested  Party shall provide upon request in writing by the Requesting Party  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  it occurred in the territory of the Requested Party. If the information  received by the competent authority of the Requested Party is not  sufficient to enable it to comply with the request for information,  it shall, in accordance with the terms provided in paragraph 7 a),  advise the competent authority of the Requesting Party of that fact  and request such additional information as may be required to enable  the effective processing of the request.

  2. If the information in possession of the competent authority  of the Requested Party is not sufficient to enable it to comply  with the request for the information, the Requested Party shall use  all relevant information gathering measures to provide the Requesting  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 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 Contracting 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 legal and beneficial ownership  of companies, partnerships and other persons, including, within the  constraints of Article 2, ownership information on all such persons  in an ownership chain; and in the case of trusts, information on  settlors, trustees, beneficiaries and protectors; and in the case  of foundations, information on founders, members of the foundation  council and beneficiaries, and equivalent information in the case  of entities that are neither trusts nor foundations.

  5. Notwithstanding the preceding paragraphs, this Agreement  does not create an obligation on the Contracting 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 in the possession or control of a person other  than the taxpayer that does not directly relate to the taxpayer.

  6. The competent authority of the Requesting Party shall provide  the following information to the competent authority of the Requested  Party when making a request for information under this Agreement  in order to demonstrate the foreseeable relevance of the information  to the request:

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

    2. the period for which the information is requested;

    3. the nature and type of the information requested, including  a description of the specific evidence sought and the form in which  the Requesting Party would prefer to receive the information;

    4. the tax purposes for which the information is sought and  the reasons why the information requested is foreseeably relevant  to the administration or enforcement of the domestic laws of the  Requesting Party;

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

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

    7. a declaration that the request is in conformity with this  Agreement and the laws and administrative practices of the Requesting Party,  and that if the requested information were 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;

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

  7. The competent authority of the Requested Party shall forward  the requested information as promptly as possible to the competent  authority of the Requesting Party. To ensure a prompt response:

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

    2. if the competent authority of the Requested Party has been  unable to obtain and provide the information requested within 90  days of receipt of the request, or if obstacles are encountered  in furnishing the information, or if the competent authority of  the Requested Party refuses to provide the information, it shall  immediately inform the competent authority of the Requesting Party  in writing, explaining the reasons for its inability to obtain and  provide the information, or the obstacles encountered, or for its  refusal.

Article 6

Tax examinations or investigations abroad

  1. The Requested Party may, to the extent  permitted under its domestic laws, and following reasonable notice  from the Requesting Party, allow representatives of the competent  authority of the Requesting Party to enter the territory of the  Requested Party in connection with a request to interview persons  and examine records with the written consent of the 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 meeting with the persons concerned.

  2. At the request of the competent authority of the Requesting  Party, the competent authority of the Requested Party may, in accordance  with its domestic laws, permit representatives of the competent  authority of the Requesting Party to be present at the appropriate  part of a tax examination in the territory of the Requested Party.

  3. If the request referred to in paragraph 2 of this Article  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 in accordance with its domestic laws.

Article 7

Possibility of declining a request

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

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

    2. 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 difficulties;  or

    3. where the disclosure of the information requested would  be contrary to public policy (ordre public).

  2. The provisions of this Agreement shall not impose upon a  party any obligation to provide information which would disclose  any trade, business, industrial, commercial or professional secret  or trade process. Information described in paragraph 4 of Article  5 shall not by reason of that fact alone constitute such a secret  or process.

    1. 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 barrister where such communications  are:

      1. produced for the purposes of seeking  or providing legal advice; or

      2. produced for the purposes of use in existing or contemplated  legal proceedings.

    2. Information held with the intention of furthering an offence  is not subject to legal privilege, and nothing in this Article shall  prevent an attorney, solicitor or barrister from providing the name  and address of a client where doing so would not constitute a breach  of legal privilege.

  3. A request for information shall not be refused on the ground  that the tax liability 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 resident or national of the Requested Party as compared with a resident  or national of the Requesting Party in the same circumstances.

Article 8

Confidentiality

  1. All information provided and received  by the competent authorities of the Contracting Parties shall be  kept confidential and 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  or the oversight of the above. For these purposes, information  may be disclosed in public court proceedings or in judicial proceedings.

  2. The information may not be disclosed to any other person  or entity or authority without the express written consent of the  competent authority of the Requested Party.

  3. Information provided to a Requesting Party shall not be  disclosed to any other jurisdiction.

Article 9

Safeguards

Nothing in this Agreement shall affect the rights and safeguards  secured to persons by the laws or administrative practice of the  Requested Party. However, these 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

Administrative costs

  1. Incidence of ordinary costs incurred  in the course of responding to a request for information will be  borne by the Requested Party. Such ordinary costs would normally  cover internal administration costs and any minor external costs.

  2. All other costs that are not ordinary costs are considered  extraordinary costs and will be borne by the Requesting Party.   Extraordinary costs include, but are not limited to, the following:

    1. reasonable fees charged by third parties  for carrying out research;

    2. reasonable fees charged by third parties for copying documents;

    3. reasonable costs of engaging experts, interpreters, or translators;

    4. reasonable costs of conveying documents to the Requesting   Party;

    5. reasonable litigation costs of the Requested Party in relation  to a specific request for information; and

    6. reasonable costs for obtaining depositions or testimony.

  3. The competent authorities of the Contracting Parties will  consult each other in any particular case where extraordinary costs  are likely to exceed $US500 to determine whether the Requesting  Party will continue to pursue the request and bear the cost.

Article 11

No prejudicial or restrictive measures

  1. So long as this Agreement is in force  and effective, it is the intention of the Contracting Parties not  to apply or introduce prejudicial or restrictive measures based  on harmful tax practices to residents or nationals of either Contracting  Party. However, in the event that a Contracting Party has reason  to believe that the other Contracting Party has introduced such  prejudicial or restrictive measures, both Contracting Parties shall  immediately initiate proceedings to resolve the matter.

  2. A prejudicial or restrictive measure based on harmful tax  practices means a measure applied by one Contracting Party to residents  or nationals of the other Contracting Party on the basis that the  other Contracting 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 measure», the term 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 relates, directly or indirectly, to taxation matters.   However, they do not include any generally applicable measure,  applied by either Contracting Party against, amongst others, members  of the OECD generally.

Article 12

Implementing legislation

The Contracting Parties shall (where they have not already done  so) enact any legislation necessary to comply with, and give effect  to, the terms of this Agreement.

Article 13

Language

Requests for assistance and responses thereto shall be drawn  up in English

Article 14

Mutual agreement procedure

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

  2. In addition to the efforts referred to in paragraph 1 of  this Article, the competent authorities of the Contracting Parties  may mutually determine the procedures to be used under Articles  5, 6 and 10.

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

Article 15

Entry into force

Each of the Contracting Parties shall notify to the other the  completion of the procedures required by its law for the bringing  into force of this Agreement. The Agreement shall enter into force  on the date of the later of the notifications. The provisions of  this Agreement shall have effect:

  1. with respect to criminal tax matters  upon the entry into force of this Agreement; and

  2. with respect to all other matters covered in Article 1 for  taxable periods beginning on or after the date of entry into force  of this Agreement.

Article 16

Termination

  1. This Agreement shall remain in force  until terminated by either Contracting Party.

  2. Either Contracting Party may terminate this Agreement by  giving notice of termination in writing. Such termination shall  become effective on the first day of the month following the expiration  of a period of three months after the date of receipt of notice  of termination by the other Contracting Party.

  3. If the Agreement is terminated the Contracting Parties shall  remain bound by the provisions of Article 8 with respect to any  information obtained under this Agreement.

In witness whereof, the undersigned, being duly authorised in  that behalf by the respective parties, have signed this Agreement.

Done at Copenhagen, this 18th day of May 2009, in duplicate in  the English language

For the Government of the Kingdom of Norway:

For the Government of the British Virgin Islands:

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