U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

19–112 

" ! SENATE 

112TH CONGRESS

2d Session 

TREATY DOC. 

2012

112–5 

PROTOCOL AMENDING THE CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

THE PROTOCOL AMENDING THE CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS, DONE AT PARIS 

ON MAY 27, 2010 (THE ‘‘PROPOSED PROTOCOL’’), WHICH WAS 

SIGNED BY THE UNITED STATES ON MAY 27, 2010 

MAY 17, 2012.—Treaty was read the first time, and together with the 

accompanying papers, referred to the Committee on Foreign Relations 

and ordered to be printed for the use of the Senate 


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LETTER OF TRANSMITTAL 

THE WHITE HOUSE, May 17, 2012. 

To the Senate of the United States: 

I transmit herewith, for the advice and consent of the Senate to 

its ratification, the Protocol Amending the Convention on Mutual 

Administrative Assistance in Tax Matters, done at Paris on May 

27, 2010 (the ‘‘proposed Protocol’’), which was signed by the United 

States on May 27, 2010. The existing Convention on Mutual Administrative Assistance in Tax Matters, done at Strasbourg on January 25, 1988, entered into force for the United States on January 

4, 1995 (the ‘‘existing Convention’’). I also transmit, for the information of the Senate, the report of the Department of State, which 

includes an Overview of the proposed Protocol. 

The proposed Protocol amends the existing Convention in order 

to bring it into conformity with current international standards on 

exchange of information, as reflected in the Organization for Economic Co-operation and Development’s (OECD) Model Tax Convention on Income and Capital and the current U.S. Model Income Tax 

Convention. Furthermore, it updates the existing Convention’s 

rules regarding the confidentiality and permitted uses of exchanged 

tax information, and opens the existing Convention to adherence by 

countries other than OECD and Council of Europe members. The 

Protocol entered into force on January 6, 2011, following ratification by five parties to the existing Convention. 

I recommend that the Senate give early and favorable consideration to the proposed Protocol and give its advice and consent to 

its ratification. 

BARACK OBAMA. 


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LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, 

Washington, March 25, 2011. 

The PRESIDENT, 

The White House. 

THE PRESIDENT: I have the honor to submit to you, with a view 

to its transmission to the Senate for advice and consent to ratification, the Protocol Amending the Convention on Mutual Administrative Assistance in Tax Matters done at Paris May 27, 2010 (the 

‘‘proposed Protocol’’) which was signed by the United States on May 

27, 2010. The Convention on Mutual Administrative Assistance in 

Tax Matters, done at Strasbourg January 25, 1988 (the ‘‘existing 

Convention’’), entered into force for the United States on January 

4, 1995. The proposed Protocol amends the existing Convention in 

order to bring it into conformity with current international standards on exchange of information, as reflected in the Organization 

for Economic Co-operation and Development (OECD)’s Model Tax 

Convention on Income and Capital and the current U.S. Model Income Tax Convention. Furthermore, it updates the Convention’s 

rules regarding the confidentiality and permitted uses of exchanged 

tax information, and opens the Convention to adherence by countries other than OECD and Council of Europe members (subject to 

the unanimous consent of the parties to the Convention). The Protocol entered into force on January 6, 2011, following ratification 

by five parties to the existing Convention. An overview of the proposed Protocol amending the Convention is enclosed in this report. 

The proposed Protocol is self-executing. I recommend that the 

proposed Protocol be transmitted to the Senate for its advice and 

consent to ratification. The Department of the Treasury and the 

Department of State cooperated in the negotiation of the proposed 

Protocol, and the Department of the Treasury joins the Department 

of State in recommending that the proposed Protocol be transmitted to the Senate as soon as possible for its advice and consent 

to ratification. 

Respectfully submitted. 

HILLARY RODHAM CLINTON. 

Enclosures: As stated. 


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OVERVIEW

The Convention on Mutual Administrative Assistance on Tax 

Matters (the ‘‘existing Convention’’), provides for the exchange of 

information between the Parties that is foreseeably relevant for the 

administration or enforcement of their domestic tax laws. Only 

member States of the Council of Europe and Member countries of 

the OECD are eligible to join the existing Convention. 

The proposed Protocol was negotiated to bring the existing Convention into conformity with current international standards regarding the exchange of information. As of February 1, 18 States 

have signed and five States have ratified the proposed Protocol, 

which entered into force on January 6. This overview describes the 

provisions of the proposed Protocol. 

ARTICLE I

Article I of the proposed Protocol amends the Preamble of the existing Convention. Paragraph 1 revises the recital that States 

should not carry out measures or supply information except in conformity with their domestic law and practice by deleting the reference regarding conformity to domestic law and practice. The replacement recital provides that States should carry out measures 

or supply information, while preserving the recital that such information sharing should take account of the necessity of protecting 

the confidentiality of information and taking account of international instruments for the protection of privacy and flow of personal data. Paragraph 2 adds a recital to the existing Convention 

noting that a new cooperative international information exchange 

environment has emerged, and that it is desirable in this context 

for a multilateral instrument for information exchange to be made 

available to the widest number of States in order to obtain the benefits of this new environment. 

ARTICLE II

Article II of the proposed Protocol amends Article 4 (General provisions) of the existing Convention. It replaces the existing paragraph 1 of Article 4 with a new paragraph 1 that requires the Parties to exchange any information that is foreseeably relevant for 

the administration or enforcement of their domestic laws concerning the taxes covered by the existing Convention. Article II of 

the proposed Protocol also deletes paragraph 2 of Article 4 of the 

existing Convention, which required the requesting Party to obtain 

prior authorization from the supplying Party in order to use the 

supplied information as evidence before a criminal court in the absence of a mutual agreement between the relevant Parties to waive 

the authorization requirement. These revisions ensure that exchange of information for both civil and criminal matters is covered 

under the Convention, and bring the existing Convention into closVerDate Mar 15 2010 05:16 May 18, 2012 Jkt 019112 PO 00000 Frm 00007 Fmt 7633 Sfmt 7633 E:\HR\OC\TD005.XXX TD005

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er conformity with current internationally agreed standards, which 

are also reflected in the OECD’s Model Tax Convention on Income 

and Capital (the ‘‘OECD Model’’) and the 2006 U.S. Model Income 

Tax Convention (the ‘‘U.S. Model’’). 

ARTICLE III

Article III of the proposed Protocol amends Article 18 (Information to be provided by the applicant state) of the existing Convention. The existing Convention specifies that a request for assistance 

shall indicate, where appropriate, the name, address, and other 

particulars to identify the subject of the request. In some situations, however, the name of the person under examination is not 

known to the applicant Party, but it may have other information 

sufficient to identify the person. Article III amends paragraph 1.b 

of Article 18 of the existing Convention to provide that a requesting 

Party may provide the name, address, ‘‘or’’ any other identifying 

particulars of the person in respect of whom the request is made. 

This amendment is intended to provide for an efficient and effective exchange of information between the Parties. Article III also 

makes a conforming change to the existing Convention to address 

deletions to the existing Convention made by Article IV and V of 

the proposed Protocol (described below). 

ARTICLE IV

Article IV of the proposed Protocol deletes Article 19 (Possibility 

of declining a request) of the existing Convention, the body of 

which appears in revised but substantially similar form at paragraph 2.g of Article 21 (Protection of persons and limits to the obligation to provide assistance) of the existing Convention, as amended by the Article V of the proposed Protocol (described below). 

ARTICLE V

Article V of the proposed Protocol substantially revises Article 21 

(Protection of persons and limits to the obligation to provide assistance) of the existing Convention, which relates to the protection of 

the rights or safeguards of persons and the limits of a Party’s obligation to provide assistance to another Party. Subparagraphs 2 (b) 

and (d) of Article 21, which specify the circumstances under which 

the existing Convention does not impose obligations on the requested State, are revised to delete references to ‘‘essential interests’’ of a party as such references are not needed and not used in 

modern agreements for the exchange of information for tax purposes. New subparagraph 2 (g) provides that a requested state is 

not obligated to provide administrative assistance if the applicant 

State has not pursued all reasonable measures under its laws or 

administrative practice, except where recourse to such measures 

would give rise to disproportionate difficulty. New subparagraph 

(h) provides that a requested State is not obliged to provide assistance if the administrative burden is clearly disproportionate to the 

benefit to be derived by the applicant State. 

The revised Article 21 also adds two important new paragraphs. 

A new paragraph 3 provides that when information is requested by 

the applicant State in accordance with the amended Convention, 


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the requested State is obligated to use its information-gathering 

powers to obtain the requested information, even though the requested State may not need such information for its own tax purposes. The obligation is subject to certain other limitations contained in the Convention, but in no case are such limitations to be 

construed to permit a requested State to decline to supply information solely because it has no domestic interest in such information. 

Paragraph 4 provides that a requested State may not decline to 

provide information solely because that information is held by a 

bank, other financial institution, nominee, or persons acting in an 

agency or fiduciary capacity, or because it relates to ownership interests in a person. These paragraphs are based on the language 

of paragraphs 4 and 5 of Article 26 of the OECD Model and the 

U.S. Model, and represent key components of the modern international standard with respect to exchange of information for tax 

purposes. 

ARTICLE VI

Article VI of the proposed Protocol revises paragraphs 1 and 2 

of Article 22 (Secrecy) of the existing Convention. These amendments concerning disclosure of information provided under the 

Convention bring the confidentiality rules of the existing Convention regarding exchanged information and the limitations regarding 

the use of such information into conformity with the current OECD 

and U.S. Models. 

ARTICLE VII

Article VII of the proposed Protocol replaces paragraph 2 of Article 27 (Other international agreements or arrangements) of the existing Convention. The amendment clarifies that Parties that are 

Member States of the European Union can apply, in their mutual 

relations, the possibilities of assistance provided by the Convention 

in so far as they allow a wider cooperation than the possibilities 

offered by the applicable European Union rules. This paragraph applies only between Member States of the European Union, and in 

no way prejudices the application of the Convention between member States of the European Union and other Parties to the Convention. 

ARTICLE VIII

Article VIII of the proposed Protocol amends Article 28 (Signature and entry into force of the Convention) of the existing Convention by adding four new paragraphs. Three of the new paragraphs 

provide procedural rules regarding the effective dates of the provisions of the proposed Protocol. 

New paragraph 4 provides that any country that is a member of 

the OECD or the Council of Europe which becomes a Party after 

the proposed Protocol enters into force will be a Party to the Convention as amended by the proposed Protocol, unless it expresses 

a different intention in writing. 

Most importantly, a new paragraph 5 expands the States that 

may become Parties to the Convention by providing that, once the 

proposed Protocol enters into force, any State that is not a member 


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of the Council of Europe or of the OECD may request to be invited 

to sign and ratify the Convention. It further provides that decisions 

to invite such States must be taken by consensus of the Parties to 

the Convention. 

New paragraphs 6 and 7 of Article 28 provide rules for the effective dates of the provisions of the proposed Protocol. New paragraph 6 provides that the amendments have effect for administrative assistance related to taxable periods beginning on or after January 1 of the year following the year in which the Convention, as 

amended by the proposed Protocol, entered into force in respect of 

a Party, or where there is no taxable period, for administrative assistance related to charges to tax arising on or after January 1 of 

the year following the year in which the Convention, as amended 

by the proposed Protocol, entered into force in respect of a Party. 

However, new paragraph 7 provides that, for criminal tax matters 

the Convention, as amended by the proposed Protocol, shall have 

effect in relation to any earlier taxable period or charge to tax, 

from the date of entry into force in respect of a Party. 

Article VIII of the proposed Protocol also amends Article 30, 

paragraph 1 of the existing Convention to permit a Party to take 

a reservation to the new paragraph 7 of Article 28 limiting, with 

respect to criminal tax matters, the effect of the Convention, as 

amended by the proposed Protocol, to three years preceding the 

year the amended Convention enters into force for a Party. 

ARTICLE IX

Article IX provides rules for the signature and entry into force 

of the proposed Protocol. The proposed Protocol is open for signature by signatories to the existing Convention. The proposed Protocol enters into force on the first day of the month following the 

expiration of a period of three months after the date of ratification 

by five parties to the existing Convention. A Party that ratifies the 

proposed Protocol after the proposed Protocol has entered into force 

will be bound by the proposed Protocol beginning on the first day 

of the month following the expiration of a period of three months 

after the date of deposit of its instrument of ratification. 

ARTICLE X

Article X of the proposed Protocol describes the functions of the 

two Depositaries of the Convention, the Council of Europe, and the 

OECD, with respect to the proposed Protocol. 


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