S.I. No. 22/2012 - Double Taxation Relief (Taxes on Income and on Capital) (Federal Republic of Germany) Order 2012.

1. This Agreement shall be ratified and the instruments of ratification shall be exchanged as soon as possible.

2. This Agreement shall enter into force on the day of the exchange of the instruments of ratification and shall have effect

(

a

) in Ireland

(i) in the case of income tax, income levy and capital gains tax, for any year of assessment beginning on or after the first day of January in the calendar year next following the year in which this Agreement enters into force;

(ii) in the case of corporation tax, for any financial year beginning on or after the first day of January in the calendar year next following the year in which this Agreement enters into force;

(

b

) in Germany

(i) in the case of taxes withheld at source, in respect of amounts paid on or after the first day of January in the calendar year next following the year in which this Agreement enters into force;

(ii) in the case of other taxes, in respect of taxes levied for periods beginning on or after the first day of January in the calendar year next following the year in which this Agreement enters into force.

3. Upon the entry into force of this Agreement, the Convention between Ireland and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital and to the Gewerbesteuer (Trade Tax), signed at Dublin on 17th of October 1962, as amended by the Protocol signed at Berlin on 25th of May 2010 (hereinafter referred to as the 1962 Convention), shall cease to have effect from the dates on which this Agreement becomes effective for taxes in accordance with the relevant provisions of paragraph 2.

4. Notwithstanding paragraphs 2 and 3, where the provisions of Article XXII of the 1962 Convention would have afforded any greater relief from tax than is due under this Agreement, any such provision as aforesaid shall continue to have effect for a period of 12 months from the date on which the provisions of this Agreement would otherwise have effect in accordance with the provisions of paragraph 2.

5. Notwithstanding the provisions of paragraphs 2 and 3 and the provisions of Article 17 where, immediately before the entry into force of this Agreement an individual was in receipt of payments falling within Articles XIII and XV of the 1962 Convention, that individual may elect that the provisions of Articles XIII and XV shall continue to apply to such payments and not the provisions of Article 17.

Article 33

TERMINATION

This Agreement shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Agreement, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year beginning after the expiration of a period of five years from the date of entry into force of the Agreement. In such event, this Agreement shall cease to have effect

(

a

) in Ireland

(i) in the case of income tax, income levy and capital gains tax, for any year of assessment beginning on or after the first day of January in the calendar year next following the year in which notice of termination is given;

(ii) in the case of corporation tax, for any financial year beginning on or after the first day of January in the calendar year next following the year in which notice of termination is given;

(

b

) in Germany

(i) in the case of taxes withheld at source, in respect of amounts paid on or after the first day of January in the calendar year next following the year in which notice of termination is given;

(ii) in the case of other taxes, in respect of taxes levied for periods beginning on or after the first day of January in the calendar year next following the year in which notice of termination is given.

Notice of termination shall be regarded as having been given by a Contracting State on the date of receipt of such notice by the other Contracting State.

Article 34

REGISTRATION

Registration of this Agreement with the Secretariat of the United Nations, in accordance with Article 102 of the United Nations Charter, shall be initiated by the Contracting State where the Agreement was signed, immediately following its entry into force. The other Contracting State shall be informed of registration, and of the UN registration number, as soon as this has been confirmed by the Secretariat.

In Witness Whereof the undersigned, duly authorised thereto, have signed this Agreement.

DONE in duplicate at Dublin on 30 March 2011 in the English and German languages, both texts being equally authoritative.

FOR IRELAND Michael Noonan

FOR THE FEDERAL REPUBLIC OF GERMANYBusso von Alvensleben

PROTOCOL

to the Agreement

between

Ireland

and

The Federal Republic of Germany

for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion

with

respect to Taxes on Income and on Capital

signed at Dublin on 30 March 2011

Ireland and The Federal Republic of Germany have in addition to the Agreement of 30 March 2011 for the Avoidance of Double Taxation and the Prevention of Tax Evasion with respect to Taxes on Income and on Capital agreed on the following provisions, which shall form an integral part of the said Agreement

1.

With reference to this Agreement as a whole

(

a

)

Retirement Benefit Schemes in Ireland

It is understood that, taking account of

(

aa

) tax-relief given for contributions or premiums paid in respect of retirement benefit schemes, retirement annuity contracts or other pension products in accordance with Part 30 of the

Taxes Consolidation Act 1997

of Ireland, and

(

bb

) the exemption from tax of income and gains accruing to a fund (referred to in this paragraph as a “pension fund”) created by such contributions or premiums,

distributions (for the purposes of section 784A of the

Taxes Consolidation Act 1997

) from an approved retirement fund (within the meaning of that section) that was created by the transfer of accrued rights or assets from a pension fund shall only be taxable by reference to the provisions of that section, notwithstanding any provision of this Agreement.

(

b

)

Undertakings for Collective Investment

(

aa

) Notwithstanding the provisions of this Agreement but without prejudice to any benefits to which an undertaking for collective investment in transferable securities (“UCITS”) would otherwise be entitled under this Agreement, a UCITS which is established in a Contracting State and which receives income arising in the other Contracting State shall be treated for purposes of applying the Agreement to such income as an individual who is a resident of the Contracting State in which it is established and as the beneficial owner of the income it receives, but only to the extent that the beneficial interests in the UCITS are owned by equivalent beneficiaries.

(

bb

) However, if at least 95 percent of the beneficial interests in the UCITS are owned by equivalent beneficiaries, the UCITS shall be treated as an individual who is a resident of the Contracting State in which it is established and as the beneficial owner of all of the income it receives.

(

cc

) For purposes of this paragraph,

(i) the term “UCITS” means an undertaking for collective investment in transferable securities within the meaning of European Communities (Undertaking for Collective Investment in Transferable Securities) Regulations 1989, as amended or extended from time to time and any other regulations that may be construed as one with those Regulations, as well as any other investment fund, arrangement or entity established in either Contracting State which the competent authorities of the Contracting States agree to regard as a UCITS for purposes of this paragraph; and

(ii) the term “equivalent beneficiary” means a resident of the Contracting State in which the UCITS is established, and a resident of any other State with which the Contracting State in which the income arises has an income tax agreement that provides for effective and comprehensive information exchange who would, if he received the particular item of income for which benefits are being claimed under this Agreement, be entitled under that agreement, or under the domestic law of the Contracting State in which the income arises, to a rate of tax with respect to that item of income that is at least as low as the rate claimed under this Agreement by the UCITS with respect to that item of income.

(

c

)

Common Contractual Fund in Ireland

A Common Contractual Fund established in Ireland shall not be regarded as a resident of Ireland and shall be treated as fiscally transparent for the purposes of granting tax treaty benefits.

2.

With reference to Article 10 (Dividends)

It is understood that the term “dividends” also includes income from distributions on certificates of a German “Investmentvermgen”.

3.

With reference to Articles 10 (Dividends) and 11 (Interest)

Notwithstanding the provisions of Article 10 and 11 of this Agreement, dividends and interest may be taxed in the Contracting States in which they arise, and according to the law of that State,

(

a

) if they are derived from rights or debt claims carrying a right to participate in profits, including income derived by a silent partner (“stiller Gesellschafter”) from his participation as such, or from a loan with an interest rate linked to borrower’s profit (“partiarisches Darlehen”) or from profit sharing bonds (“Gewinnobligationen”) within the meaning of the tax law of Germany, and

(

b

) under the condition that they are deductible in the determination of profits of the debtor of such income.

4.

With reference to Article 12 (Royalties)

It is understood that if, following the signature of the Agreement, the laws of Ireland should change to allow a greater amount of royalties to be disregarded for the purposes of the Income Tax Acts than would be permitted by the provisions of Section 234(3A)(

a

) of the

Taxes Consolidation Act 1997

at the time of signature of the Agreement, then Ireland shall notify Germany of such change and, if Germany so requests, shall enter into a renegotiation of the Article so that such royalties arising in Germany may be taxed in Germany.

5.

With reference to paragraph 3 of Article 17 (Pensions and Annuities) and paragraph 2 a) of Article 23 (Elimination of Double Taxation) and paragraph 6 of this Protocol

It is understood income is actually taxed when it is actually included in the taxable base by reference to which the tax is computed. Income is not actually taxed when, being subject to tax treatment normally applicable to such income, it is either not taxable or exempt from tax.

6.

With reference to paragraph 2 of Article 20 (Other Income)

Where the recipient and the payer of a dividend are both residents of Germany and the dividend is attributed to a permanent establishment that the recipient of the dividend has in Ireland but is not actually taxed in Ireland, Germany may tax such a dividend at the rates provided for in paragraph 2 of Article 10. Ireland shall give a credit for such tax according to the provisions of Article 23.

7.

With reference to Article 23 (Elimination of Double Taxation)

It is understood that references in paragraph 2e) (

aa

) to items of income or capital being placed under different provisions of this Agreement or being attributed to different persons are references to income or capital being so placed or attributed in accordance with the provisions of this Agreement and to such differences where they are based not on different interpretations of facts or the provisions of the Agreement but rather on different provisions of the domestic law of each Contracting State, as distinguished in paragraphs 32.5 and 32.6 of the July 2008 version of the Commentary on Article 23A and 23B of the model tax convention on income and on capital of the OECD.

8.

With reference to Article 26 (Exchange of Information)

If in accordance with domestic law personal data are exchanged under this Agreement, the following additional provisions shall apply subject to the legal provisions in effect for each Contracting State

(

a

) The receiving agency may use such data only for the stated purpose and shall be subject to the conditions prescribed by the supplying agency.

(

b

) The receiving agency shall on written request inform the supplying agency about the use of the supplied data and the results achieved thereby.

(

c

) Personal data may be supplied only to the responsible agencies. Any subsequent supply to other agencies may be effected only with the prior approval of the supplying agency.

(

d

) The supplying agency shall be obliged to ensure that the data to be supplied are accurate and that they are necessary for and proportionate to the purpose for which they are supplied. Any prohibition of or restriction on data supply prescribed under applicable domestic law shall be observed. If it emerges that inaccurate data or data which should not have been supplied have been supplied, the receiving agency shall be informed of this without delay. That agency shall be obliged to correct or erase such data without delay.

(

e

) Upon application the person concerned shall be informed of the supplied data relating to him and of the use to which such data are to be put. There shall be no obligation to furnish this information if on balance it turns out that the public interest in withholding it outweighs the interest of the person concerned in receiving it. In all other respects, the right of the person concerned to be informed of the existing data relating to him shall be governed by the domestic law of the Contracting State in whose sovereign territory the application for the information is made.

(

f

) The receiving agency shall bear liability in accordance with its domestic laws in relation to any person suffering unlawful damage or loss as a result of supply under the exchange of data pursuant to this Agreement. In relation to the damaged person, the receiving agency may not plead to its discharge that the damage had been caused by the supplying agency.

(

g

) Where the domestic law of the supplying agency contains special provisions for the deletion of the personal data supplied, that agency shall inform the receiving agency accordingly. Irrespective of such law, supplied personal data shall be erased once they are no longer required for the purpose for which they were supplied.

(

h

) The supplying and the receiving agencies shall be obliged to keep official records of the supply and receipt of personal data.

(

i

) The supplying and the receiving agencies shall be obliged to take effective measures to protect the personal data supplied against unauthorised access, unauthorised alteration and unauthorised disclosure.

GIVEN under the Official Seal of the Government,

24 January 2012.

ENDA KENNY,

Taoiseach.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

This Order gives the force of law to the Agreement between Ireland and the Federal Republic of Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, which is set out in the Schedule to the Order. The effect of the Agreement is summarised below.

This Agreement with the Federal Republic of Germany, which was signed in Dublin on 30 March 2011 is comprehensive in scope and is based on the OECD Model Convention.

The taxes covered by the Agreement are, for Ireland, Income Tax, Universal Social Charge, Corporation Tax and Capital Gains Tax: for the Federal Republic of Germany, the Income Tax (Einkommensteuer, Corporation Tax (Krperschaftsteuer), the Trade Tax (Gewerbesteuer) and the Capital Tax (Vermgensteuer).

The Agreement provides for the allocation of taxing rights between Ireland and the Federal Republic of Germany and for the granting of relief from double taxation with regard to items of income and capital gains which, under the laws of Ireland and the laws of the Federal Republic of Germany may under the terms of the Agreement be taxed in both countries.

Where both countries continue to have taxing rights, for example in the case of certain dividends, business profits arising through a permanent establishment which a person resident in one country has in the other country, or in the case of capital gains arising from the disposal of immovable property, the Agreement provides that the country of residence of the recipient of the income or gain will give relief against its tax on the income or gains for the tax paid in the other country on the same income or gains. Irish direct investors (i.e. Irish companies holding 5% or more of the voting power of the paying company) in receipt of dividends from a German company are granted credit for the tax paid by the German company on the profits out of which the dividends are paid (known as credit for underlying tax).

Where source State taxation of dividends applies (depending on the ownership interest in the paying company), this is restricted to 5% or 15% of the gross dividend. The Agreement also provides for safeguarding nationals and enterprises of one country against discriminatory taxation in the other country, for consultation between the competent authorities of the two countries for the purpose of resolving any doubts or difficulties arising as to the interpretation or application of the Agreement and for the exchange of such information between these authorities as is forseeably relevant for carrying out the provisions of the Agreement or of the domestic law of either country in relation to the taxes of every kind.

The Agreement will enter into force when each country notifies the other of the completion of its procedures for bringing the Agreement into force. It will thereupon have effect in both countries for tax periods in the following year.

6. Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.

7. Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be

(

a

) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, or

(

b

) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collection

the competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.

8. In no case shall the provisions of this Article 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 carry out measures which would be contrary to public policy (

ordre public

);

(

c

) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;

(

d

) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;

(

e

) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles.

Article 28

PROCEDURAL RULES FOR TAXATION AT SOURCE

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

27

th January

, 2012.

WHEREAS it is enacted by section 826(1) (as substituted by

section 35

of the

Finance Act 2007

(No. 11 of 2007)) of the

Taxes Consolidation Act 1997

(No. 39 of 1997) that where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to affording relief from double taxation in respect of income tax, corporation tax in respect of income and chargeable gains, capital gains tax or any taxes of a similar character imposed by the laws of the State or by the laws of that territory and, in the case of taxes of any kind or description imposed by the laws of the State or the laws of that territory, in relation to exchanging information for the purposes of the prevention and detection of tax evasion or granting relief from taxation under the laws of that territory to persons who are resident in the State for the purposes of tax, and that it is expedient that those arrangements should have the force of law, and that the order so made is referred to in Part 1 of Schedule 24A of the

Taxes Consolidation Act 1997

, then, subject to section 826 of that Act, the arrangements shall, notwithstanding any enactment, have the force of law as if such order were an Act of the Oireachtas on and from the date of the insertion of a reference to the order into Part 1 of Schedule 24A;

AND WHEREAS it is further enacted by

section 826

(6) of the

Taxes Consolidation Act 1997

that where such an order is proposed to be made, a draft of the order shall be laid before Dáil Éireann and the order shall not be made until a resolution approving of the draft has been passed by Dáil Éireann;

AND WHEREAS a draft of the following Order has been laid before Dáil Éireann and a resolution approving of the draft has been passed by Dáil Éireann;

NOW, the Government, in exercise of the powers conferred on them by

section 826

(1) (as substituted by

section 35

of the

Finance Act 2007

) of the

Taxes Consolidation Act 1997

, hereby order as follows