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Note: This Treaty may be impacted by the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI). MLI impact on Tax Treaties is available with the Orbitax International Tax Research & Compliance Expert.

PROTOCOL

At the moment of signing the Convention between the Kingdom of Spain and the United Arab Emirates for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on Income and on capital, the undersigned have agreed upon the following provisions which shall be an integral part of the Convention:

(I) AD. Article 13:

For the purpose of the interpretation of article 13, it is understood that Article 13.5 includes capital gains from the alienation of shares or comparable interest in a company, other than those referred to in Article 13.4, derived by a resident of a Contracting State, including the government financial institutions or investment companies of that State.

(II) AD. Article 25:

It is understood that Article 25 of the Convention will apply under the followings guidelines:

(1) With the reference to article 25 paragraph 3, it is understood that in case of a request for certain information from a Contracting State, such information shall as far as possible be supplied by the requested Contracting State to the extent that it is obtainable according to its domestic laws or in the normal course with the administrative practice.

(2) Object and Scope of Article 25:

With the reference to Article 25 paragraphs 1 and 2, it is understood that the competent authorities of the Contracting States shall provide as far as possible assistance through co-operation in the notifications of Administrative Decisions of the Contracting States and exchange of information that is foreseeable relevant to the administration and enforcement of the domestic laws of the Contracting States. Such information shall include information that is foreseeable 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 the Convention and its Protocol and shall be treated as confidential in the manner provided for in Article 25. The rights and safeguards secured to persons by the laws or administrative practice of the requested State remain applicable to the extent that they do not unduly prevent or delay effective exchange of information.

(3) Jurisdiction:

A requested State 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.

(4) Definitions:

For the purposes of this Protocol provision, it is understood that:

  • (a) 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;
  • (b) 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;
  • (c) the term "recognised stock exchange" means any stock exchange that operates under the supervision of a Regulatory Authority whose regulations contains sufficient safeguards against private limited companies posing as publicly listed companies;
  • (d) 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 redemption is not implicitly or explicitly restricted to a limited group of investors;
  • (e) the term "applicant State" means the Contracting State requesting information;
  • (f) the term "requested State" means the Contracting State requested to provide information;
  • (g) the term "information gathering measures" means laws and administrative or judicial procedures that enable a Contracting State to obtain and provide the requested information;
  • (h) the term "information" means any fact, statement or record in whatever form;
  • (i) the term "criminal Saws" means all criminal laws designated as such under domestic law irrespective of whether contained in the tax laws, the criminal code or other statutes.
  • (j) the term "notification" means the delivery of documents to residents of either one of the Contracting States according to the rules that govern the delivery of documents of that State.

(5) Exchange of Information upon Request:

  • (1) The competent authority of the requested State shall provide upon request information for the purposes referred to in Article 25 and Protocol provision 11.2. Such information shall be exchanged without regard to whether the conduct being investigated would constitute a crime under the laws of the requested State if such conduct occurred in the requested State.
  • (2) If the information in the possession of the competent authority of the requested State is not sufficient to enable it to comply with the request for information, that State shall use all relevant information gathering measures to provide the applicant State with the information requested, notwithstanding that the requested State may not need such information for its own tax purposes.
  • (3) If specifically requested by the competent authority of an applicant State, the competent authority of the requested State shall provide information under Article 25, to the extent allowable under its domestic laws, in the form of depositions of witnesses and authenticated copies of original records.
  • (4) Each Contracting State shall ensure that its competent authorities for the purposes specified in Article 25, 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 Protocol Provision 11,3, ownership information on all such persons in an ownership chain; in the case of trusts, information on settlers, trustees and beneficiaries; and in the case of foundations, information on founders, members of the foundation council and beneficiaries.
  • Further, Article 25 does not create an obligation on the Contracting States to obtain or provide ownership information with respect to publicly traded companies or public collective investment funds.
  • (5) The Competent Authorities of the Contracting States may by mutual agreement settle the mode in which requests for information shall be submitted to the Requested State.
  • (6) Possibility of Declining a Request:
    • (1) The requested State shall not be required to obtain or provide information that the applicant State would not be able to obtain under its own laws for purposes of the administration or enforcement of its own laws.
    • (2) The provisions of Article 25 shall not impose on a Contracting State 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 Protocol Provision 11.5.4 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 Convention shall not impose on a Contracting State 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 State may decline a request for information if the information is requested by the applicant State to administer or enforce a provision of the tax law of the applicant State, or any requirement connected therewith, which discriminates against a national of the requested State as compared with a national of the applicant Sate in the same circumstances.
  • (7) Request for Notifications:
    • (1) The authority of a Contracting State, at the request of the Competent authority of the other Contracting State, and in accordance with the laws which govern the notification of such instruments in the first-mentioned Contracting State, shall notify, when possible, decisions and any other instrument which emanate from the administrative authorities of the other Contracting State and concern the application of taxes of every kind and description imposed on behalf of the Contracting States.
    • (2) The competent authority of the applicant State shall inform the competent authority of the requested State of the name, address and any other relevant information of the addressee, when making a request for notification, if such information is available.
    • (3) The competent authority of the requested State shall confirm receipt of a request in writing to the competent authority of the applicant State and shall notify the competent authority of the applicant State of any deficiencies in the request.
    • (4) The Competent Authorities of the Contracting States may by mutual agreement settle the mode in which requests for notification shall be submitted to the Requested State.
  • (8) Language:
  • Requests for assistance and answers thereto shall be drawn up in English, or in Spanish and English.

IN WITNESS WHEREOF, the undersigned, duly authorised thereto, have signed this Convention.

DONE in duplicate in Abu Dhabi on the 5th day of March 2006, in the Spanish, Arabic and English languages, all the texts being equally authentic. In case of any divergence of interpretation, it shall be resolved in accordance with the English text..

FOR THE KINGDOM OF SPAIN:

MIGUEL ANGEL MORATINOS CUYAUBE

FOREIGN MINISTER

FOR THE UNITED ARAB EMIRATES:

SHEIKH ABDULLAH BIN ZAYED AL NAHYAN

FOREIGN MINISTER