Scope of the Agreement

Provided that persons who are residents according to Article 4 of the Convention of a Contracting State in which a vehicle mentioned in paragraph 2 is organised (‘Residents’) beneficially own more than 95% of the capital of such a vehicle, that vehicle may claim refund of the withholding tax on income derived from the other Contracting State (‘Source State’) under Articles 10 or 11 of the Convention.

Where the percentage of ownership by such Residents does not exceed 95%, the vehicles mentioned in paragraph 2 may claim refund of the withholding tax under Articles 10 or 11 of the Convention limited to that proportion of the capital of the vehicles beneficially owned by Residents.

A FCP or SICAV, which is established in Switzerland and which receives items of income to which the Convention applies, may itself, represented by its fund manager or its depository, claim the benefits of the Convention on behalf of the investors which are residents of Switzerland under the Convention.

A FCP or SICAV may not make a refund claim for benefits in respect of an item of income on behalf of any investor in a FCP or SICAV if the investor has itself made a refund claim for benefits in respect of the same item of income.

The vehicle or its authorised representatives must indicate, based on data established at the due date of withholding tax in the Source State or at least once every year, and in accordance with the regulations of the Source State, the percentage of ownership of the capital of the vehicle beneficially owned by Residents. For a vehicle mentioned in paragraph 2 with a large number of investors, this may be done through pooled information per country. This vehicle or its authorized representatives may provide the percentage of investors per country in that vehicle on a pooled basis per 1 January of the respective year. Each State may apply appropriate control mechanisms.

The vehicle or its authorized representatives making a claim for treaty benefits under paragraph 3, 4 or 5 using the yearly determination method described in paragraph 7 shall make the determinations described therein to the best of his knowledge and belief. A financial intermediary need not provide investor-specific information to the vehicle or its authorized representatives, or to other financial intermediaries between the owner of beneficial interests and the CIV, at the time the determination is made, but may provide pooled information regarding the owners of beneficial interests. Investor residence may also be determined on the basis of pooled information provided to the financial intermediary by a lower-tier financial intermediary. It is a condition of making a claim pursuant to this competent authority agreement, that the CIV, also regarding pooled information provided by any financial intermediary, must, upon request from the Contracting State in which the income arises, provide to that Contracting State a certification of an accountant. This certification is to include the confirmation of the pooled information regarding the residence of the owners of the beneficial interest and the reliability regarding the method used to make those determinations.