Double Taxation Relief (Taxes on Income and Capital Gains) (Bosnia and Herzegovina) Order, 2010

• Jurisdiction: Ireland
• Citation: IR SI 17/2010

S.I. No. 17 of 2010

DOUBLE TAXATION RELIEF (TAXES ON INCOME AND CAPITAL GAINS) (BOSNIA AND HERZEGOVINA) ORDER 2010

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 5th February, 2010.

WHEREAS it is enacted by section 826(1) (as amended 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 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 anything in 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 amended by section 35 of the Finance Act 2007 (No. 11 of 2007)) of the Taxes Consolidation Act 1997 (No. 39 of 1997) hereby order as follows:

1. This Order may be cited as the Double Taxation Relief (Taxes on Income and Capital Gains) (Bosnia and Herzegovina) Order 2010.

2. It is declared—

(a) that the arrangements specified in the Convention, the text of which is set out in the Schedule to this Order, have been made with the Council of Ministers of Bosnia and Herzegovina in relation to affording relief from double taxation in respect of income tax, corporation tax, capital gains tax and any taxes of a similar character imposed by the laws of the State or by the laws of Bosnia and Herzegovina and, in the case of taxes of any kind or description imposed by the laws of the State or the laws of Bosnia and Herzegovina, in relation to exchanging information for the purposes of the prevention and detection of tax evasion and granting relief from taxation under the laws of Bosnia and Herzegovina to persons who are resident in the State for the purposes of tax, and

(b) that it is expedient that those arrangements should have the force of law.

SCHEDULE CONVENTION BETWEEN IRELAND AND BOSNIA AND HERZEGOVINA

FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION

WITH RESPECT TO TAXES ON INCOME AND CAPITAL GAINS

The Government of Ireland and the Council of Ministers of Bosnia and Herzegovina desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains, have agreed as follows:

Article 1

Persons Covered

This Convention shall apply to persons who are residents of one or both of the Contracting States.

Article 2

Taxes Covered

1. This Convention shall apply to taxes on income and capital gains imposed on behalf of a Contracting State or its political subdivisions or local authorities, irrespective of the manner in which they are levied.

2. There shall be regarded as taxes on income and capital gains all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property.

3. The existing taxes to which the Convention shall apply are in particular:

(a) in the case of Ireland:

(i) the income tax;

(ii) the corporation tax; and

(iii) the capital gains tax;

(hereinafter referred to as “Irish tax”);

(b) in the case of Bosnia and Herzegovina:

(i) the taxes on income;

(ii) the corporation taxes;

(hereinafter referred to as “Bosnia and Herzegovina tax”).

4. The Convention shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in their taxation laws.

Article 3

General Definitions

1. For the purposes of this Convention, unless the context otherwise requires:

(a) the terms “Contracting State”, “one of the Contracting States”, “the other Contracting State” mean Ireland or Bosnia and Herzegovina, as the context requires; and the term “the Contracting States” means Ireland and Bosnia and Herzegovina;

(b) the term “Ireland” includes any area outside the territorial waters of Ireland which, in accordance with international law, has been or may hereafter be designated under the laws of Ireland concerning the Continental Shelf, as an area within which the rights of Ireland with respect to the sea bed and subsoil and their natural resources may be exercised;

(c) the term “Bosnia and Herzegovina” means Bosnia and Herzegovina including the territory of Bosnia and Herzegovina, its territorial waters, as well as the sea bed and subsoil, where it applies its jurisdiction and sovereign rights for purposes of exploring, exploiting and maintaining of natural resources in accordance with international law;

(d) the term “political subdivision” in the case of Bosnia and Herzegovina means the entities: Federation of Bosnia and Herzegovina and Republika Srpska; and Brcko District of Bosnia and Herzegovina;

(e) the term “national”, in relation to a Contracting State, means:

(i) any individual possessing the nationality or citizenship of that Contracting State; and

(ii) any legal person or association deriving its status as such from the laws in force in that Contracting State;

(f) the term “person” includes an individual, a company and any other body of persons;

(g) the term “company” means any body corporate or any entity that is treated as a body corporate for tax purposes;

(h) the term “enterprise” applies to the carrying on of any business;

(i) the terms “enterprise of a Contracting State” and “enterprise of the other Contracting State” mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;

(j) the term “international traffic” means any transport by a ship or aircraft operated by an enterprise which has its place of effective management in a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;

(k) the term “competent authority” means:

(i) in the case of Ireland, the Revenue Commissioners or their authorised representative;

(ii) in the case of Bosnia and Herzegovina, the Ministry of Finance and Treasury or its authorised representative;

(l) the term “business” includes the performance of professional services and of other activities of an independent character.

2. As regards the application of the Convention at any time by a Contracting State, 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 State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.

Article 4

Resident

1. For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State.

2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:

(a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests);

(b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode;

(c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national;

(d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in...