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Tax Conventions Implementation Act, 2013 (S.C. 2013, c. 27)

Assented to 2013-06-19

SCHEDULE 5(Sections 8 to 11)

PART 2PROTOCOL AMENDING THE CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL, DONE AT LUXEMBOURG ON 10 SEPTEMBER 1999

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG,

DESIRING to amend the Convention between the Government of Canada and the Government of the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital, done at Luxembourg on 10 September 1999 (hereinafter referred to as the “Convention”),

Have agreed as follows:

Article I

The text of Article 26 of the Convention is deleted and replaced by the following:

  • “1. The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed by or on behalf of the Contracting States, insofar as the taxation thereunder is not contrary to this Convention. The exchange of information is not restricted by Articles 1 and 2.

  • 2. Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to taxes, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorises such use.

  • 3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:

    • (a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;

    • (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;

    • (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).

  • 4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.

  • 5. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, trust, foundation, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.”

Article II

  • 1. The Contracting States shall notify each other in writing, through diplomatic channels, of the completion of their respective procedures which are necessary for the entry into force of this Protocol.

  • 2. This Protocol shall enter into force on the date of the later of the notifications referred to in paragraph 1. The provisions of this Protocol shall have effect for taxable periods beginning on or after 1 January of the calendar year next following the year of the entry into force of this Protocol, and, where there is no taxable period, for all charges to tax arising on or after 1 January of the calendar year next following the year of the entry into force of this Protocol.

IN WITNESS WHEREOF, the undersigned, duly authorized thereto by their respective governments, have signed this Protocol.

DONE in duplicate at Montreal on this 8th day of May 2012, in the English and French languages, each version being equally authentic.

Edward Fast
Minister for International Trade
for the Government of Canada
Etienne Schneider
Minister of the Economy and Foreign Trade
for the Government of the Grand Duchy of Luxembourg

PART 3AGREEMENT

Luxembourg, 8 May 2012

Excellency,

I have the honour to refer to the Convention between the Government of the Grand Duchy of Luxembourg and the Government of Canada for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital, done at Luxembourg on 10 September 1999, as amended by the Protocol signed today, (hereinafter referred to as the “Convention”) and to propose on behalf of the Government of the Grand Duchy of Luxembourg the following understanding:

  • (1) The competent authority of the requested State shall provide, at the request of the competent authority of the applicant State, information for the purposes referred to in Article 26 of the Convention.

  • (2) The competent authority of the applicant State shall provide the following information to the competent authority of the requested State when making a request for information under the Convention to demonstrate the foreseeable relevance of the information requested to the administration and enforcement of the tax laws of the applicant State:

    • (a) the identity of the person under examination or investigation;

    • (b) a description of the information sought including its nature and the form in which the applicant State wishes to receive the information from the requested State;

    • (c) the tax purpose for which the information is sought;

    • (d) the grounds for believing that the information requested is held in the requested State or is in the possession or control of a person within the jurisdiction of the requested State;

    • (e) to the extent known, the name and address of any person believed to be in possession of the requested information;

    • (f) a statement that the applicant State has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.

If the foregoing understanding meets with the approval of the Government of Canada, I have the further honour to propose that this Note and your affirmative Note in reply shall constitute an agreement between our Governments which shall become an integral part of the Convention on the date of entry into force of the Protocol.

Please accept, your Excellency, the assurances of my highest consideration.

His Excellency Jean Asselborn
Minister of Foreign Affairs
for the Grand Duchy of Luxembourg

Brussels, 11 May 2012

Note No. 5789

Excellency,

I have the honour to acknowledge the receipt of Your Excellency’s note dated 8 may 2012, which reads as follows:

“Excellency,

I have the honour to refer to the Convention between the Government of the Grand Duchy of Luxembourg and the Government of Canada for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital, done at Luxembourg on 10 September 1999, as amended by the Protocol signed today, (hereinafter referred to as the “Convention”) and to propose on behalf of the Government of the Grand Duchy of Luxembourg the following understanding:

  • (1) The competent authority of the requested State shall provide, at the request of the competent authority of the applicant State, information for the purposes referred to in Article 26 of the Convention.

  • (2) The competent authority of the applicant State shall provide the following information to the competent authority of the requested State when making a request for information under the Convention to demonstrate the foreseeable relevance of the information requested to the administration and enforcement of the tax laws of the applicant State:

    • (a) the identity of the person under examination or investigation;

    • (b) a description of the information sought including its nature and the form in which the applicant State wishes to receive the information from the requested State;

    • (c) the tax purpose for which the information is sought;

    • (d) the grounds for believing that the information requested is held in the requested State or is in the possession or control of a person within the jurisdiction of the requested State;

    • (e) to the extent known, the name and address of any person believed to be in possession of the requested information;

    • (f) a statement that the applicant State has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.

If the foregoing understanding meets with the approval of the Government of Canada, I have the further honour to propose that this Note and your affirmative Note in reply shall constitute an agreement between our Governments which shall become an integral part of the Convention on the date of entry into force of the Protocol.

Please accept, your Excellency, the assurances of my highest consideration.”

I have the further honour to confirm, on behalf of the Government of Canada, that the understanding contained in Your Excellency’s Note is acceptable to the Government of Canada and to confirm that Your Excellency’s Note and this reply shall constitute an agreement between our Governments which shall become an integral part of the Convention on the date of entry into force of the Protocol.

Accept, Your Excellency, the expression of my highest consideration.

Louis de Lorimier
Ambassador of Canada
to the Grand Duchy of Luxembourg
 
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