- 1 -O presente Acordo permanecerá em vigor por um período de tempo ilimitado.
- 2 -Qualquer das Partes poderá, a qualquer momento, denunciar o presente acordo mediante notificação prévia, por escrito e por via diplomática.
- 3 -O presente Acordo cessa a sua vigência seis meses após a data da recepção da respectiva notificação.
- 4 -Não obstante a denúncia, as Partes continuarão vinculadas ao disposto no artigo 8.º do presente Acordo.
Em fé do que os signatários, devidamente autorizados para o efeito pelas respectivas Partes, assinaram o presente Acordo.
Feito em Paget Parish em 10 de Maio de 2010, em dois originais, nas línguas portuguesa e inglesa, fazendo todos os textos igualmente fé.
Pela República Portuguesa:
(ver documento original)
Pelo Governo das Bermudas:
(ver documento original)
AGREEMENT BETWEEN THE PORTUGUESE REPUBLIC AND THE GOVERNMENT OF BERMUDA (AS AUTHORISED BY LETTER OF ENTRUSTMENT FROM THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND) FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS.
The Portuguese Republic and the Government of Bermuda, hereinafter referred to as «Parties», desiring to facilitate the exchange of information with respect to taxes, have agreed as follows:
Article 1
Scope of Agreement
- 1 -The competent authorities of the Parties shall provide assistance through exchange of information upon request as set forth in this Agreement. Such information shall:
- a)Be relevant to the administration and enforcement of the domestic laws of the requesting Party concerning taxes covered by this Agreement;
- b)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 criminal tax matters; and
- c)Be treated as confidential as set forth in this Agreement.
- 2 -With respect to paragraphs a) and b) of this article information will be considered relevant notwithstanding that a definite assessment of the pertinence of the information to an on-going investigation could only be made following the receipt of the information.
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 -This Agreement shall apply to the following taxes imposed by the Parties:
- a)In case of Portugal:
- i)Personal income tax (imposto sobre o rendimento das pessoas singulares - IRS);
- ii)Corporate income tax (imposto sobre o rendimento das pessoas colectivas - IRC);
- iii)Local surtax on corporate income tax (derrama);
- iv)Stamp duty on gratuitous transfers (imposto do selo sobre as transmissões gratuitas);
- b)In case of Bermuda:
- i)Direct taxes of every kind and description.
- a)In case of Portugal:
- 2 -This Agreement shall also apply to any identical taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes. This Agreement shall also apply to any substantially similar taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes if the competent authorities of the Parties so agree. Furthermore, the taxes covered may be expanded or modified by mutual agreement of the Parties in the form of an exchange of letters. The competent authorities of the Parties shall notify each other of any substantial changes to the taxation and related information gathering measures covered by the Agreement.
Article 4
Definitions
- 1 -In this Agreement:
- a)«Portugal» means territory of the Portuguese Republic situated in the European continent, the archipelagos of Azores and Madeira, the territorial sea and inland waters thereof as well as the continental shelf and any other area wherein the Portuguese State exercises sovereign rights or jurisdiction in accordance with the rules of international law and the laws of the Portuguese Republic;
- b)«Bermuda» means the Islands of Bermuda;
- c)«Company» means any body corporate or any entity that is treated as a body corporate for tax purposes;
- d)«Competent authority» means, in the case of Portugal, the Minister of Finance, the Director General of Taxation (director-geral dos Impostos) or their authorized representative; and in the case of Bermuda, the Minister of Finance or an authorised representative of the Minister;
- e)«Criminal laws» means all criminal laws designated as such under domestic law, irrespective of whether such are contained in the tax laws, the criminal code or other statutes;
- f)«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;
- g)«Information gathering measures» means laws and administrative or judicial procedures enabling the requested Party to obtain and provide the information requested;
- h)«Information» means any fact, statement, document or record in whatever form;
- i)«Person» means a natural person, a company or any other body or group of persons;
- j)«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;
- 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)«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;
- 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;
- 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 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 by the requesting Party information for the purposes referred to in article 1. Such information shall be provided 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 in its own territory, 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, that Party shall use at its own discretion all applicable information gathering measures necessary to provide the requesting Party with the information requested, notwithstanding that the requested Party may not, at that time, 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 laws, in the form of depositions of witnesses and authenticated copies of original records.
- 4 -Each Party shall ensure that its competent authorities, in accordance with the terms of this Agreement have the authority to obtain and provide upon request:
- a)Information held by banks, other financial institutions, and any person, including nominees and trustees, acting in an agency or fiduciary capacity; and
- b)Information regarding the beneficial ownership of companies, partnerships and other persons, including in the case of collective investment funds and schemes, information on shares, units and other interests; in the case of trusts, information on settlors, trustees and beneficiaries; and in the case of foundations, information on founders, members of the foundation council and beneficiaries;
provided that 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.
- 5 -Any request for information shall be formulated with the greatest detail possible and shall specify in writing:
- 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 sought 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 relevant to the administration and enforcement of the tax law 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 held 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 the requested information;
- h)A statement that the request conforms with the laws and administrative practice of the requesting Party and that the information would be obtainable by the requesting Party under its laws or in the normal course of administrative practice in response to a valid request made in similar circumstances from the requested Party under this Agreement;
- i)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.
- 6 -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 reasonable delay.
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 requesting Party to enter the territory of the requesting Party to interview individuals 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 individuals concerned.
- 2 -At the request of the competent authority of the requesting Party, the competent authority of the requested Party may allow representatives of the competent authority of the requesting 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 requesting 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 requested Party shall not be required to obtain or provide information that the requesting Party would not be able to obtain under its own laws for purposes of the administration or enforcement of its own tax laws. The competent authority of the requested Party may decline to assist where the request is not made in conformity with 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 article 5, paragraph 4 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 are:
- a)Produced for the purposes of seeking or providing legal advice; or
- b)Produced for the purposes of use in existing or contemplated legal proceedings.
- 4 -The requested Party may decline a request for information if the disclosure of the information would be contrary to public policy (order public).
- 5 -A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed.
- 6 -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.
Article 8
Confidentiality
- 1 -All information provided and received by the competent authorities of the Parties shall be kept confidential.
- 2 -Such 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.
- 3 -Such information may not be used for any purpose other than for the purposes stated in article 1 without the express written consent of the competent authority of the requested Party.
- 4 -Information provided to a requesting Party under this Agreement may not be disclosed to any other jurisdiction.
- 5 -Personal data may be transmitted to the extent necessary for carrying out the provisions of this Agreement and subject to the law of the requested Party.
- 6 -The Parties shall ensure the protection of personal data at a level that is equivalent to that of Directive 95/46/EC of The European Parliament and of the Council of 24 October 1995 and shall comply with the guidelines established by the United Nations General Assembly Resolution 45/95, adopted on the 14th December 1990.
Article 9
Costs
Incidence of costs incurred in providing assistance shall be agreed by the Parties.
Article 10
Implementation legislation
The Parties shall enact any legislation necessary to comply with, and give effect to, the terms of this Agreement.
Article 11
Language
Requests for assistance and answers thereto shall be drawn up in English or any other language agreed bilaterally between the competent authorities of the Parties under article 12.
Article 12
Mutual agreement procedure
- 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 agreements referred to in paragraph 1, the competent authorities of the Parties may mutually agree on the procedures to be used under articles 5 and 6.
- 3 -The Parties shall endeavour to agree on other forms of dispute resolution should this become necessary.
- 4 -Formal communications, including requests for information, made in connection with or pursuant to the provisions of this Agreement will be in writing directly to the competent authority of the other Party at such address as may be notified by one Party to the other from time to time. Any subsequent communications regarding requests for information will be either in writing or verbally, whichever is most practical, between the aforementioned competent authorities or their authorised representatives.
Article 13
Entry into force
- 1 -This Agreement shall enter into force from the date on which the Parties have notified each other that their respective requirements for the entry into force of this Agreement have been fulfilled. The relevant date shall be the day on which the last notification is received.
- 2 -Upon the date of entry into force, this Agreement 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.
Article 14
Duration and termination
- 1 -The present Agreement shall remain in force for an unlimited period of time.
- 2 -Either Party may, at any time, terminate the present Agreement upon a prior notification in writing through diplomatic channels.
- 3 -The present Agreement shall terminate six months after the receipt of such notification.
- 4 -Notwithstanding the termination, the Parties shall remain bound by the provisions of article 8 of the present Agreement.
In witness whereof the undersigned being duly authorised in that behalf by the respective Parties, have signed the Agreement.
Done at Paget Parish on the 10-05-2010, in duplicate in the portuguese and english languages, both texts being equally authentic.
For the Portuguese Republic:
(ver documento original)
For the Government of Bermuda:
(ver documento original)
PROTOCOLO AO ACORDO ENTRE A REPÚBLICA PORTUGUESA E O GOVERNO DAS BERMUDAS SOBRE TROCA DE INFORMAÇÕES EM MATÉRIA FISCAL
No momento da assinatura do Acordo entre a República Portuguesa e o Governo das Bermudas sobre Troca de Informações em Matéria Fiscal, a República Portuguesa e as Bermudas (as «Partes») acordaram nas seguintes disposições que fazem parte integrante do referido Acordo:
- 1 -Relativamente ao artigo 9.º do ATIF, é decidido mutuamente que os custos normais contraídos em conexão com a resposta a um pedido de informação serão suportados pela Parte requerida. Esses custos normais abrangem normalmente os custos administrativos internos da autoridade competente e despesas externas secundárias tais como despesas de correio.
- 2 -Os custos extraordinários contraídos em conexão com a prestação de assistência serão suportados pela Parte requerente. Os custos extraordinários directos incluem os custos razoáveis relativos à contratação de peritos, quando necessário.
- 3 -Todos os custos razoáveis contraídos por terceiros a fim de dar satisfação ao pedido de troca de informações são considerados custos extraordinários e serão suportados pela Parte requerente desde que devidamente justificados.
- 4 -As autoridades competentes consultar-se-ão sempre que os custos extraordinários excedam previsivelmente dois mil e quinhentos dólares dos Estados Unidos ($US 2500) a fim de definir se a Parte requerente dá prosseguimento ao pedido e suporta o encargo.
- 5 -Relativamente ao artigo 5.º do ATIF, é mutuamente acordado que o prazo de disponibilização de informação deve ser aplicado de acordo com a legislação interna das Partes.
- 6 -Relativamente ao artigo 12.º - Procedimento amigável - do ATIF, no caso de uma Parte aplicar medidas prejudiciais ou restritivas com base em práticas fiscais danosas a residentes ou nacionais da outra Parte, qualquer uma das Partes pode iniciar imediatamente o procedimento da autoridade competente a fim de resolver a questão. Uma medida prejudicial ou restritiva com base em práticas fiscais danosas é uma medida aplicada por uma Parte aos residentes ou aos nacionais de uma das Partes com base na ocorrência de uma ou mais das seguintes situações:
- a)A outra Parte não promove uma efectiva troca de informações;
- b)Falta de transparência no funcionamento da respectiva legislação, regulamentos ou práticas administrativas; ou
- c)Com fundamento na inexistência de tributação ou de tributação nominal.
- 7 -Os direitos e as garantias dos indivíduos, previstos pela legislação ou pela prática administrativa da Parte requerida, mantêm-se aplicáveis. Os direitos e as garantias não podem ser aplicados pela Parte requerida de modo a impedir ou a retardar indevidamente a efectiva troca de informações.
Autoridade Competente para a República Portuguesa:
(ver documento original)
Autoridade Competente para o Governo das Bermudas:
(ver documento original)
PROTOCOL TO THE AGREEMENT BETWEEN THE PORTUGUESE REPUBLIC AND THE GOVERNMENT OF BERMUDA FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS
The Portuguese Republic and the Government of Bermuda (the «Parties») have agreed at the signing of the Agreement between The Portuguese Republic and the Government of Bermuda for the Exchange of Information relating to Tax Matters on the following provisions which shall form an integral part of the said Agreement:
- 1 -With respect to article 9 of the TIEA it is mutually decided that ordinary costs that are incurred for the purpose of responding to a request for information will be borne by the Requested Party. Such ordinary costs will normally cover internal administration costs of the competent authority and any minor external costs such as the cost of couriers.
- 2 -Direct extraordinary costs incurred in providing assistance shall be borne by the requesting Party. The direct extraordinary costs shall include reasonable costs of engaging experts when necessary.
- 3 -All reasonable costs incurred by third parties in complying with the request of exchange of information are considered extraordinary costs and will be borne by the requesting Party when duly justified.
- 4 -The competent authorities will consult each other in any particular case where extraordinary costs are likely to exceed two thousand five hundred United States dollars ($US 2, 500) to determine whether the Applicant Party will continue to pursue the request and bear the cost.
- 5 -With respect to article 5 of the TIEA it is mutually agreed that the time limit for availability of information should be applied according to the internal legislation of the Parties.
- 6 -With respect to article 12 Mutual Agreement Procedure of the TIEA, in the event that a Party applies prejudicial or restrictive measures based on harmful tax practices to residents or nationals of the other Party, either Party may immediately initiate competent authority proceedings to endeavour to resolve the matter. A prejudicial or restrictive measure based on harmful tax practices is a measure applied by one Party to residents or nationals of either Party on the basis that any one or more of the following applies:
- a)The other Party does not engage in effective exchange of information;
- b)Because it lacks transparency in the operation of its laws, regulations or administrative practices; or
- c)On the basis of no or nominal taxes.
- 7 -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.
Competent Authority for the Portuguese Republic:
(ver documento original)
Competent Authority for the Government of Bermuda:
(ver documento original)
Artigo 14.º — Vigência e denúncia
Vigente desde: 16/03/2011