feel it appropriate to assist even China proper in relation to a fiscal offence. In our submission, there are a number of possible alternative formulations, which would open the door to assistance in fiscal cases in differing degrees. These are:-
(1) A broad relaxation, which would remove the bar in
paragraph (3), leaving assistance in fiscal cases to be dealt with in accordance with general rules. In particular, there would have to be double criminality, in accordance with Article IV(1)(h);
(2)
(3)
The making of exceptions to the bar in paragraph (3), such as in relation to all manner of customs duties, for which perhaps an appropriate definition could be found, with or without a discretion in relation to other fiscal cases as in (3) below;
The insertion of suitable wording allowing either party to grant assistance in relation to fiscal matters on a case by case basis with or without an absolute bar on assistance in relation to certain types of fiscal offence or matter.
If provision is made for the possibility of assistance in certain tax matters, then it seems that Article IV(1)(h) would need to be modified in order to make it clear that assistance will not be refused on this ground merely because the tax etc. is not identical to a tax etc. chargeable in the other State but may be granted if the tax is similar to a tax chargeable in its own jurisdiction (as in Article 2 Additional Protocol to the European Convention).
Having made the above points, it appears that it might be possible to interpret Article 1(3) to the effect that, although assistance cannot be given in relation to criminal proceedings etc. involving taxes, assistance could be given in relation to an investigation of a possible tax offence. I myself feel that this is a difficult distinction to make, bearing in mind the intimate relation between investigation and prosecution, but I mention the matter because it has been raised by my Administrators. I suppose that, if such a distinction is intended, it might at least be helpful to clarify this with the Hong Kong side, certainly if the paragraph is to remain in its existing form.
Article II
Is it worth giving consideration to the possibility of the making of urgent requests direct between judicial bodies, which latter expression could be defined? very often the case that communication through formal channels does not meet the needs of practitioners where, for instance, there is an on-going investigation and assistance needs to be given quickly if it is to be given at all.
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