EXCHANGE OF INFORMATION (TAX MATTERS) (BERMUDA) ORDER (bermuda)

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

SUBSIDIARY LEGISLATION 123.145

EXCHANGE OF INFORMATION (TAX MATTERS)

(BERMUDA) ORDER

8th March, 2013

LEGAL NOTICE 120 of 2013.

The title of this order is the Exchange of Information (Tax

Matters) (Bermuda) Order.

(Article 2)

AGREEMENT BETWEEN

THE GOVERNMENT OF MALTA AND

THE GOVERNMENT OF BERMUDA

FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS

The Government of Malta and the Government of Bermuda, desiring to facilitate

the exchange of information with respect to taxes have agreed as follows

Article 1

Object and Scope of the Agreement

The competent authorities of the Contracting Parties shall provide assistance

through exchange of information that is foreseeably relevant to the administration

and enforcement of the domestic laws of the Contracting Parties concerning taxes

covered by this Agreement. Such information shall include information that is

foreseeably relevant to the determination, assessment and collection of such taxes,

the recovery and enforcement of tax claims, or the investigation or prosecution of

tax matters. 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.

The rights and safeguards secured to persons by the laws or administrative practice

of the requested Party remain applicable to the extent that they do not unduly prevent

or delay effective exchange of 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. The taxes which are the subject of this Agreement are

(a) In the case of Malta

-

the income tax;

(b) In the case of Bermuda

-

direct taxes of every kind and description.

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’ Parties so agree. Furthermore, the taxes covered may be

expanded or modified by mutual agreement of the Contracting Parties in the form of

an exchange of letters. The competent authorities of the Contracting 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. For the purposes of this Agreement, unless otherwise defined

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

(a) the term "Malta" means the Republic of Malta and, when used in a

geographical sense, means the Island of Malta, the Island of Gozo and

the other islands of the Maltese archipelago including the territorial

waters thereof, as well as any area of the sea-bed, its sub-soil and the

superjacent water column adjacent to the territorial waters, wherein

Malta exercises sovereign rights, jurisdiction, or control in accordance

with international law and its national law, including its legislation

relating to the exploration of the continental shelf and exploitation of its

natural resources;

(b) the term "Bermuda" means the islands of Bermuda;

(c) the term "applicant Party" means the Contracting Party requesting

information;

(d) the term "company" means any body corporate or any entity that is

treated as a body corporate for tax purposes;

(e) the term "competent authority" means

(i) in the case of Malta: the Minister responsible for finance or his

authorised representative;

(ii) in the case of Bermuda, the Minister of Finance or his authorised

representative;

(f) the term "Contracting Party" means Malta or Bermuda as the context

requires;

(g) the term "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 statutes;

(h) the term "criminal tax matters" means tax matters involving intentional

conduct which is liable to prosecution under the criminal laws of the

applicant Party;

(i) the term "information gathering measures" means laws and

administrative or judicial procedures that enable a Contracting Party to

obtain and provide the information requested;

(j) the term "information" means any fact, statement or record in any form

whatever;

(k) the term "person" includes an individual, a company and any other body

of persons;

(l) the term "principal class of shares" means the class or classes of shares

representing a majority of the voting power and value of the company;

(m) the term "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;

(n) the term "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

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

redemption is not implicitly or explicitly restricted to a limited group of

investors;

(o) the term "recognised stock exchange" means any stock exchange agreed

upon by the competent authorities of the Contracting Parties;

(p) the term "requested Party" means the Contracting Party requested to

provide information;

(q) the term "tax" means any tax to which this Agreement applies.

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 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

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 such conduct occurred in

the requested Party.

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 all relevant information gathering measures to

provide the applicant Party with the information requested, notwithstanding that the

requested Party may not need such information for its own tax purposes.

It is hereby declared

(a) that the arrangements specified in the Agreement set

out in the Schedule to this Order have been made with

the Government of Bermuda with a view to preventing

fiscal evasion in relation to taxes of every kind and

description imposed by the laws of Bermuda;

(b) that it is expedient that those arrangements should

have effect;

(c) that the Agreement has entered into force on 5th

November 2012.

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

If specifically requested by the competent authority of the applicant 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.

Each Contracting Party shall ensure that its competent authorities for the

purposes specified in Article 1 of the Agreement, have the authority to obtain and

provide upon request

(a) information held by banks, other financial institutions, and any person

acting in an agency or fiduciary capacity including nominees and

trustees;

(b) information regarding the ownership of companies, partnerships, trusts,

foundations, "Anstalten" and other persons, including, within the

constraints of Article 2, ownership information on all such persons in an

ownership chain; 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. Further,

this Agreement does not create an obligation on the Contracting Parties

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.

The competent authority of the applicant Party shall provide the following

information to the competent authority of the requested Party when making a request

for information under the Agreement to demonstrate the foreseeable relevance of the

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

information to the request

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

(b) a statement of the information sought including its nature and the form

in which the applicant Party wishes to receive the information from the

requested Party;

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

(d) grounds for believing that the information requested is held in the

requested Party or is in the possession or control of a person within the

jurisdiction of the requested Party;

(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 request is in conformity with the law and

administrative practices of the applicant Party, that if the requested

information was within the jurisdiction of the applicant Party then the

competent authority of the applicant Party would be able to obtain the

information under the laws of the applicant Party or in the normal

course of administrative practice and that it is in conformity with this

Agreement;

(g) a statement that the applicant Party has pursued all means available in

its own territory to obtain the information, except those that would give

rise to disproportionate difficulties.

The competent authority of the requested Party shall forward the requested

information as promptly as possible to the applicant Party. To ensure a prompt

response, the competent authority of the requested Party shall

(a) confirm receipt of a request in writing to the competent authority of the

applicant Party and shall notify the competent authority of the applicant

Party of deficiencies in the request, if any, within 60 days of the receipt

of the request;

(b) if the competent authority of the requested Party has been unable to

obtain and provide the information within 90 days of receipt of the

request, including if it encounters obstacles in furnishing the

information or it refuses to furnish the information, it shall immediately

inform the applicant Party, explaining the reason for it inability, the

nature of the obstacles or the reasons for its refusal.

Article 6

Tax Examinations Abroad

1. A Contracting Party may allow representatives of the competent authority of

the other Contracting Party to enter the territory of the first-mentioned Party to

interview individuals and examine records with the written consent of the persons

concerned. The competent authority of the second-mentioned Party shall notify the

competent authority of the first-mentioned Party of the time and place of the meeting

with the individuals concerned.

2. At the request of the competent authority of one Contracting Party, the

competent authority of the other Contracting Party may allow representatives of the

competent authority of the first-mentioned Party to be present at the appropriate part

of a tax examination in the second-mentioned Party.

3. If the request referred to in paragraph 2 is acceded to, the competent

authority of the Contracting Party conducting the examination shall, as soon as

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

possible, notify the competent authority of the other 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 first-mentioned Party for the

conduct of the examination. All decisions with respect to the conduct of the tax

examination shall be made by the 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 applicant 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 Contracting 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 Contracting 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 (ordre 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 applicant Party to administer or enforce a provision of the tax law

of the applicant Party, or any requirement connected therewith, which discriminates

against a national of the requested Party as compared with a national of the applicant

Party in the same circumstances.

Article 8

Confidentiality

Any information received by a Contracting Party under this Agreement shall be

treated as confidential and may be disclosed only to persons or authorities (including

courts and administrative bodies) in the jurisdiction of the Contracting Party

concerned with the assessment or collection of, the enforcement or prosecution in

respect of, or the determination of appeals in relation to, the taxes covered by this

Agreement. Such persons or authorities shall use such information only for such

purposes. They may disclose the information in public court proceedings or in

judicial decisions. The information may not be disclosed to any other person or

entity or authority or any other jurisdiction without the express written consent of

the competent authority of the requested Party.

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

Article 9

Costs

Incidence of costs incurred in providing assistance shall be agreed by the

Contracting Parties. The respective competent authorities shall consult from time to

time with regard to this Article so as to establish a procedure for ordinary costs and

extra ordinary costs whereby ordinary costs are borne by the requested Party and

extraordinary costs are borne by the applicant Party.

Article 10

Implementation of Legislation

The Contracting Parties shall enact any legislation necessary to comply with, and

give effect to, the terms of the Agreement.

Article 11

Mutual Agreement Procedure

1. Where difficulties or doubts arise between the Contracting Parties regarding

the implementation or interpretation of the Agreement, the competent authorities

shall endeavour to resolve the matter by mutual agreement.

2. In addition to the agreements referred to in paragraph 1, the competent

authorities of the Contracting Parties may mutually agree on the procedures to be

used under Articles 5 and 6.

Article 12

Entry into Force

This Agreement shall enter into force when each Party has notified the other in

writing of the completion of its necessary internal procedures for entry into force.

Upon entry into force, it shall have effect

(a) for criminal tax matters, as from that date; and

(b) for all other matters covered in Article 1, as from 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 13

Termination

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

2. Either Party may terminate this Agreement by giving notice of termination

in writing, through diplomatic channels, to the other Party.. Such termination shall

become effective on the first day of the month following the expiration of a period of

six months after the date of receipt of notice of termination by the other Party.

3. If the Agreement is terminated the 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 the Agreement.

Done at London on the 24th day of November 2011.

EXCHANGE OF INFORMATION

(TAX MATTERS) (BERMUDA)

Joseph Zammmit Tabona

Paula Cox

FOR THE GOVERNMENT OF

FOR THE GOVERNMENT OF

MALTA

OF BERMUDA

MEMORANDUM OF UNDERSTANDING

BETWEEN

THE GOVERNMENT OF MALTA

AND

THE GOVERNMENT OF BERMUDA

CONCERNING

THE INTERPRETATION OR APPLICATION OF THE AGREEMENT

BETWEEN

THE GOVERNMENT OF MALTA

AND THE GOVERNMENT OF BERMUDA (AS AUTHORISED BY THE UNITED

KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND)

FOR THE EXCHANGE OF INFORMATION ON TAX MATTERS

The Government of Malta and the Government of Bermuda, desiring to facilitate

the exchange of information with respect to taxes, have reached the following

understanding

1. This Memorandum of Understanding is not intended to create legal rights,

obligations or relations either in international law or the domestic law of the country

of either party.

2. Pursuant to Article 1 of the Agreement it is mutually decided that the phrase

"foreseeably relevant" and "foreseeable relevance" has the meaning referred to in

paragraph numbered 4 of the OECD 2002 Commentary to Article 1 of the 2002

OECD Model TIEA and this meaning applies to the phrase "foreseeably relevant"

and "foreseeable relevance" wherever it is used in the Agreement.

3. Pursuant to Article 3 of the Agreement information exchanged shall not be

used for the purposes of taxes other than those covered by Article 3.

4. By entering into this Agreement, Bermuda will be exempt from legislation

with regard to prohibitive measures imposed upon jurisdictions which do not have

Exchange of Information mechanisms in place or are low- or no- income tax

jurisdictions.

5. Pursuant to Article 5 of the Agreement it is mutually decided that while the

competent authorities acknowledge that legal requirements, consistent with such

international standards as may be relevant and, in particular, such standards in

relation to financial services, in the jurisdiction of the requested Party may not

require certain records to be kept for longer than a specified period, the competent

authorities will, nevertheless, use all relevant information-gathering measures to

provide any information requested, when that information is, in fact, kept.

6. By entering into the Agreement, Bermuda is not considered to be engaging

in any harmful tax practices and is not considered to be a tax haven.

Joseph Zammmit Tabona

Paula Cox

FOR THE GOVERNMENT OF

FOR THE GOVERNMENT OF

MALTA

OF BERMUDA

Date: 24 November 2011

Date: 24 November 2011