Administrative assistance in tax matters: the Federal Council submits amendments to parliament
Berne, 06.04.2011 - The Federal Council is seeking authorisation from the National Council and Council of States to amend the double taxation agreements (DTAs) already approved by parliament in line with internationally applicable standards on administrative assistance in tax matters. With the amendments, Switzerland stands by the concept of a level playing field for all countries. With the dispatch adopted today, the Federal Council is implementing the amendments to the requirements for administrative assistance requests decided on 13 February 2011.
The DTAs with Denmark, Finland, France, the UK, Qatar, Luxembourg, Mexico, Norway and Austria approved by parliament on 18 June 2010, are to be supplemented with an interpretation clause. This clause states that the requirements for an administrative assistance request should not hinder an effective exchange of information. The Federal Department of Finance (FDF) should be authorised by parliament to bilaterally agree the interpretation clause in an appropriate form with these nine states. Switzerland and the respective contracting state will thereby be bound by the requirements set out in the agreement for an administrative assistance request not to be interpreted in a formalistic and restrictive manner.
In accordance with the Federal Council decision of 13 February 2011, in future indicating the name and address of the taxpayer and the information holder is no longer absolutely necessary for processing administrative assistance requests, provided that the identification occurs by other means and fishing expeditions are not involved. Because this rendering of the interpretation clause was not available at the time of approval by parliament on 18 June 2010, it must be approved by the National Council and the Council of States in order to be constitutionally secure and viewed as being approved by the legislator in possible appeals proceedings in court. For each of these agreements, the Federal Council will thus submit a supplementary resolution to parliament on the interpretation clause and its definition. There will be a further supplementary resolution on the agreement with the United States, which was also approved by parliament on 18 June 2010. This agreement already contains the interpretation clause, which is why parliament only has to take a decision on its definition.
Gradual amendments
In the view of the Federal Council, the amendments decided by it on 13 February 2011 in the case of administrative assistance should be agreed with all parties to the agreements with which DTAs were negotiated in accordance with the Federal Council's parameters of 13 March 2009 on the new administrative assistance policy. With regard to agreements which are pending before parliament and which were negotiated in accordance with these parameters, the Federal Council has submitted a proposal for reconsideration. In the case of DTAs which have already been signed and which have not yet been submitted to parliament for approval and which do not contain an interpretation clause, the required amendments should be carried out with the partner state on a bilateral basis. This also applies to initialled DTAs.
Even after the amendments described, administrative assistance will be provided only in individual cases and upon justified request. Fishing expeditions remain impermissible. Identifying the taxpayer and the holder of the information in administrative assistance requests will generally continue to be by indicating the name and address in future as well. With the amendments, Switzerland is eliminating a foreseeable obstacle to the effective exchange of information in tax matters and thus reducing the risk of failure in the peer review process of the Global Forum on Transparency and Exchange of Information for Tax Purposes.
Interpretation
In accordance with the rule on interpretation, requests for administrative assistance need to be interpreted in such a way that an effective exchange of information is not hindered. This rule is already contained in the DTAs with the United States, the Netherlands, Turkey, Poland, India, Germany, Canada, South Korea, Spain, Slovakia, Malta, Singapore, Romania and Sweden. It is to be integrated in all other DTAs in accordance with internationally applicable standards. This is as follows:
"In terms of application, the purpose of referring to information that may be foreseeably relevant is intended to provide for exchange of information in tax matters to the widest possible extent without allowing the contracting states to engage in fishing expeditions or to request information that is unlikely to be relevant to the tax affairs of a given taxpayer. The details to be supplied in the administrative assistance request are important procedural requirements to ensure that fishing expeditions do not occur, but they must not be interpreted in such a way that they frustrate effective exchange of information."
Whereas the rule on interpretation already ensures internationally applicable standards on administrative assistance, administrative assistance practices still have to be fleshed out by defining the rule on interpretation. In particular, it highlights that administrative assistance requests which are not fishing expeditions will be honoured if the requesting state:
a) identifies the taxpayer, although this identification can ensue in a way other than by indicating the name and address,
b) indicates the name and address of the alleged holder of the information, insofar as this is known to it. In the case of missing data on the information holder, Switzerland will provide administrative assistance if administrative assistance requests are in line with the principles of proportionality and practicability in accordance with internationally applicable standards.
Address for enquiries
Beat Furrer,
Head of Communications, Federal Tax Administration,
031 324 91 29,
beat.furrer@estv.admin.ch
Links
Publisher
The Federal Council
https://www.admin.ch/gov/en/start.html
Federal Department of Finance
https://www.efd.admin.ch/efd/en/home.html
