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Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008: Amendment: Law drafting instructions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

  • demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision

  • providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 18 January 2016:

Decision Reference:   MD-ER-2016-0001

Decision Summary Title :

To prepare an Amendment to the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008

Date of Decision Summary:

8 January 2016

Decision Summary Author:

External Relations

Decision Summary:

Public or Exempt?

Public

Type of Report:

Oral or Written?

Written

Person Giving

Oral Report:

N/A

Written Report

Title :

To prepare an amendment to the Taxation (Exchange of Information) (Jersey) Regulations 2008

Date of Written Report:

8 January 2016

Written Report Author:

Adviser – International Affairs

Written Report :

Public or Exempt?

Public

Subject:

To prepare an Amendment to the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008

Decision:

To request the Law Draftsman to prepare an Amendment to the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008

Reason(s) for Decision:

The Minister for External Relations approved proposals for the Law Draftsman to prepare an Amendment to the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 to include in the Schedule the Tax Information Exchange  Agreement with the Kingdom of Spain required as a result of the signing of the Agreement on the 17th November 2015.

Resource Implications:  

There are no financial or manpower implications arising from the law drafting instructions.

Action required:

The Minister for External Relations requested that the Adviser – International Affairs submit drafting instructions to the Law Draftsman’s Office.

Signature: 

 

 

 

Position: 

Minister for External Relations

Date Signed:

 

18 January 2016

 

Date of Decision (If different from Date Signed):

 

 

Hide report
Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008: Amendment: Law drafting instructions

 

 

 

 

AGREEMENT ON EXCHANGE OF INFORMATION ON TAX MATTERS BETWEEN JERSEY AND THE KINGDOM OF SPAIN                                       UNDER ENTRUSTMENT FROM THE GOVERNMENT OF

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

 

Whereas Jersey and the Kingdom of Spain (the Parties) wish to enhance and facilitate the terms and conditions governing the exchange of information relating to all tax matters;

 

Whereas the Parties recognise that the following Agreement contains obligations on the part of the Parties only;

 

WHEREAS it is acknowledged that Jersey has the right, under the terms of the Entrustment from the United Kingdom of Great Britain and Northern Ireland, to negotiate, conclude, perform and subject to the terms of this Agreement terminate a tax information exchange agreement with the Kingdom of Spain;

 

The Parties desiring to facilitate the exchange of information with respect to taxes have agreed as follows:

 

 

 

Article 1

 

Object and Scope of the Agreement

 

The competent authorities of the Parties shall provide assistance through co‑operation in notifying Administrative Decisions of the Parties and exchanging information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Parties concerning taxes covered by this Agreement. Such information shall include information that is foreseeably 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 this Agreement and shall be treated as confidential in the manner provided in Article 8.   The rights and safeguards secured to persons by the laws or administrative practice of the requested Party remain applicable to the extent that they do not unduly prevent or delay the effective exchange of information.

 

 

 

 

 

Article 2

 

Jurisdiction

 

A requested Party is not obligated to provide information which is neither held by its authorities nor in the possession or control of nor obtainable by persons who are within its territorial jurisdiction.

 

 

 

Article 3

 

Taxes Covered

 

  1. The taxes which are the subject of this Agreement are:

 

a)  in Spain:

-          the income tax on individuals (Impuesto sobre la Renta de las Personas Fisicas);

-          the corporation tax (Impuesto sobre Sociedades);

-          the income tax on non-residents (Impuesto sobre la Renta de No Residentes);

-          the capital tax (Impuesto sobre el Patrimonio);

-          the inheritance and gift tax (Impuesto sobre Sucesiones y Donaciones);

-          the transfer tax (Impuesto sobre Transmisiones Patrimoniales y Actos Juridicos Documentados)

-          the value added tax (Impuesto sobre el Valor Añadido);

-          the excise tax (Impuestos Especiales); and

-          the local taxes on income and on capital (impuestos locales sobre la renta y el patrimonio)

 

b)  in Jersey :

 - the income tax;

 - the goods and services tax.

 

  1. This Agreement shall also apply to any identical or substantially similar taxes imposed after the date of signature of the Agreement in addition to or in place of the existing taxes. Furthermore, the taxes covered may be expanded or modified by mutual agreement of the Parties in the form of an exchange of letters. The competent authorities of the Parties shall notify each other in writing of any substantial changes to the taxation and related information gathering measures covered by the Agreement.

 

 

 

 

Article 4

 

Definitions

 

  1. For the purposes of this Agreement, unless otherwise defined:

 

a)   "Party" means Spain or Jersey as the context requires;

 

b)   "Spain" means the Kingdom of  Spain and, when used in a geographical sense, means the territory of the Kingdom of Spain including inland waters, the air space, the territorial sea and any maritime area outside the territorial sea upon which, in accordance with international law and on application of its domestic legislation, the Kingdom of Spain exercises or may exercise in the future jurisdiction or sovereign rights with respect to the seabed, its subsoil and superjacent waters, and their natural resources;

 

c)    “Jersey” means  the Bailwick of Jersey, including the territorial sea;

 

d)   "competent authority" means:

 

i)     in the case of Spain, the Minister of Finance and Public Administration or his authorised representative;

 

ii)  in the case of Jersey, the Treasury and Resources Minister or his authorised representative;

 

e)   “administrative decisions” means decisions and any instruments which emanate from the administrative authorities concerning the application of taxes covered by this Agreement;

 

f)    "criminal laws" means all criminal laws designated as such under domestic law irrespective of whether contained in the tax laws, the criminal code or other statutes;

 

g)   “criminal tax matters” means tax matters involving intentional conduct whether before or after the entry into force of this agreement which is liable to prosecution under the criminal laws of the Requesting Party;

 

h)   "collective investment fund or scheme" means any pooled investment vehicle, irrespective of its legal form;

 

i)      "company" means any body corporate or any entity that is treated as a body corporate for tax purposes;

 

j)     "information" means any fact, statement or record in any form whatever;

 

k)   "information gathering measures" means laws and administrative or judicial procedures that enable a Party to obtain and provide the requested information;

 

l)     "notification" means the delivery of documents to residents of either one of the Parties in accordance with the rules of the Party which makes such delivery;

 

m) "person" means an individual, a company and any other body or group of persons;

 

n)   “principal class of shares” means the class or classes of shares representing a majority of the voting power and value of the company;

 

o)   “public collective investment fund or scheme” means any collective investment fund or scheme in which the purchase, sale or redemption of shares or other interests is not implicitly or explicitly restricted to a limited group of investors;

 

p)   “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 restricted to a limited group of investors

 

q)   "Requested Party" means the Party requested to provide information and/or to assist with notification;

 

r)    "Requesting  Party" means the Party requesting information and/or assistance for notification;

 

s)    “recognised stock exchange” means any stock exchange agreed upon by the competent authorities of the Parties;

 

t)     "tax" means any tax to which the Agreement applies;

 

 

  1. As regards the application of this Agreement at any time by a  Party, 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 Party, any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.

 

 

 

 

 

 

 

Article 5

 

Exchange of Information upon Request

 

  1. The competent authority of the Requested Party shall provide upon request information for the purposes referred to in Article 1. Such information shall be exchanged without regard to whether the Requested Party needs such information for its own tax purposes or the conduct being investigated would constitute a crime under the laws of the Requested Party if such conduct occurred in the Requested Party.  The competent authority of the Requesting Party shall only make a request for information pursuant to this Article when it is unable to obtain the requested information by other means, except where recourse to such means would give rise to disproportionate difficulty. 

 

  1. If the information in the possession of the competent authority of the Requested Party is not sufficient to enable it to comply with the request for information, that Party shall use all relevant information gathering measures necessary to provide the Requesting Party with the information requested, notwithstanding that the Requested Party may not need such information for its own tax purposes.

 

  1. If specifically requested by the competent authority of the Requesting Party, the competent authority of the Requested Party shall provide information under this Article, to the extent allowable under its domestic laws, in the form of depositions of witnesses and authenticated copies of original records.

 

  1. Each Party shall ensure that its competent authorities for the purposes specified in Article 1 of the Agreement, have the authority to obtain and provide upon request:

 

a)   information held by banks, other financial institutions, trusts, foundations and any person acting in an agency or fiduciary capacity including nominees and trustees;

 

b)                 information regarding the legal and beneficial ownership of companies, partnerships and other persons and within the constraints of Article 2, any other persons in an ownership chain , including

 (i) in the case of collective investment schemes, information on shares, units and other interests;

(ii)  in the case of trusts, information on settlors, trustees, protectors and beneficiaries ; and

(iii) in the case of foundations, information on founders, members of the foundation council and beneficiaries.

 

  Notwithstanding the preceding paragraphs, this Agreement creates an obligation on the Parties to obtain or provide ownership information with respect to publicly traded companies or public collective investment schemes unless such information cannot be obtained without giving rise to disproportionate difficulties.

 

 

  1. Any request for information shall be formulated with the greatest of detail possible and shall specify in writing:

 

a)   the identity of the person under examination or investigation;

 

b)   the period for which information is requested;

 

c)   a statement of the information sought including its nature and the form in which the Requesting Party would prefer to receive the information from the Requested Party;
 

d)   the tax purpose for which the information is sought;

 

e)   the reasons for believing that the information requested is foreseeably relevant to the administration or enforcement of the taxes of the Requesting Party covered under Article 3 with respect to a person identified in sub-paragraph (a) of this paragraph;

 

f)    grounds for believing that the information requested is held in the Requested Party or is in the possession of or in the control of or obtainable by a person within the jurisdiction of the Requested Party;

 

g)   to the extent known, the name and address of any person believed to be in possession of or in the control of or able to obtain the requested information;

 

h)   a statement that the request is in conformity with the law and administrative practices of the Requesting Party, that if the requested information was within the jurisdiction of the Requesting Party then the competent authority of the Requesting Party would be able to obtain the information under the laws of the Requesting Party or in the normal course of administrative practice and that it is in conformity with this Agreement;

 

i)     a statement that the Requesting Party has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.

 

6. The competent authority of the Requested Party shall acknowledge in writing receipt of the request to the competent authority of the Requesting Party no later than ten working days after the receipt, advise if there are any unexpected delays in obtaining the requested information and shall use its best endeavours to forward the requested information to the Requesting Party no later than six months following the date of the confirmation of the receipt of the request.

 

 

 

Article 6

 

Tax Examinations Abroad


At the request of the competent authority of the Requesting Party, the competent authority of the Requested Party may allow representatives of the competent authority of the Requesting Party to be present at the appropriate part of a tax examination by the Requested Party. If the request is acceded to, the competent authority of the Requested Party conducting the examination shall, as soon as possible, notify the competent authority of the Requesting Party about the time and place of the examination, the authority or official designated to carry out the examination and the procedures and conditions required by the Requested Party for the conduct of the examination. All decisions with respect to the conduct of the tax examination shall be made by the Requested Party conducting the examination.

 

 

 

Article 7

 

Possibility of Declining a Request

 

  1. The Requested Party shall not be required to obtain or provide information that the Requesting Party would not be able to obtain under its own laws for purposes of the administration or enforcement of its own tax laws.

 

  1. The provisions of this Agreement shall not impose on the Requested Party the obligation to supply information subject to legal privilege or which would disclose any trade, business, industrial, commercial or professional secret or trade process. Notwithstanding the foregoing, information of the type referred to in Article 5, paragraph 4 shall not be treated as such a secret or trade process merely because it meets the criteria in that paragraph.

 

  1. The Requested Party may decline a request for information

a) where the request is not made in conformity with this Agreement;

b) where the Requesting Party has not pursued all means available in its own territory to obtain the information, except where recourse to such means would give rise to disproportionate difficulty; or

c) where the disclosure of the information would be contrary to public policy (ordre public).

 

  1. A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed.

 

  1. The Requested Party may decline a request for information if the information is requested by the Requesting Party to administer or enforce a provision of the tax law of the Requesting Party, or any requirement connected therewith, which discriminates against a national of the Requested Party as compared with a national of the Requesting Party in the same circumstances.

 

 

 

Article 8

 

Confidentiality

 

1. All information provided and received by the competent authorities of the Parties shall be kept confidential.

 

2. Information received by the Requesting Party may be used for purposes other than those stated in Article 1 when such information may be used for such other purposes under the laws of the Requesting Party and the competent authority of the Requested Party authorises such use.

 

3. Information provided shall be disclosed only to persons or authorities (including judicial and administrative authorities) concerned with the purposes specified in Article 1 and used by such persons or authorities only for such purposes including the determination of any appeal.  For these purposes, information may be disclosed in public court proceedings or in judicial decisions.

 

4. The information provided to a Requesting Party under this Agreement may not be disclosed to any other jurisdiction.

 

 

 

Article 9

 

Request for Notifications

 

  1. The competent authority of the Requested Party, at the request of the competent authority of the Requesting Party, and in accordance with the rules which govern the notification of similar instruments in the first-mentioned Party, shall notify decisions and any other instrument which emanate from the administrative authorities of the second-mentioned Party and concern the application of taxes covered by this Agreement.

 

  1. The competent authority of the Requesting Party shall inform the competent authority of the Requested Party of the name, address and any other relevant information of the addressee, when making a request for notification.
     
  2. The competent authority of the Requested Party shall confirm receipt of a request in writing to the competent authority of the Requesting Party and shall notify the competent authority of the Requesting Party of deficiencies in the request, if any, within 30 days of the receipt of the request.

 

  1. The competent authority of the Requested Party shall inform the competent authority of the Requesting Party immediately, and in any case within 60 days of the receipt of the request, of:

 

a)      the date of transmission of the decision or instrument to the addressee;

b)     the action that has been taken to reach the addressee and an explanation of the reasons for the inability, if it has been impossible to reach the addressee.

 

The Requesting Party shall subsequently decide whether or not to rescind its request. If it decides not to rescind its request, the Parties shall informally and directly, through mutual agreement or otherwise, discuss the possibilities to achieve the purpose of the request and consult with each other the manner in which to achieve that objective.

 

  1. It shall be deemed that the notification has been impossible if the competent authority of the Requesting Party receives no communication from the competent authority of the Requested Party within 60 days of the receipt of the request.

 

  1. The time restrictions mentioned in this Article do not in any way impact on the validity and legality of notification made under this Agreement.

 

  1. This Article does not preclude the application of the domestic rules for notification of the Requesting Party, both procedures being equally valid.

 

 

 

Article 10

 

Costs

 

Unless the competent authorities of the Parties otherwise agree, ordinary costs incurred in providing assistance shall be borne by the Requested Party, and extraordinary costs incurred in providing assistance (including costs of engaging external advisers in connection with litigation or otherwise) shall be borne by the Requesting Party.  The respective competent authority shall consult from time to time with regard to this Article, and in particular the competent authority of the Requested Party shall consult with the competent authority of the Requesting Party in advance if the costs of providing information with respect to a specific request are expected to be significant.

 

 

 

Article 11

 

Implementation Legislation

 

The Parties shall enact any legislation necessary to comply with, and give effect to, the terms of this Agreement.

 

 

 

Article 12

 

Language

 

Requests for assistance and answers thereto shall be drawn up in English, or in Spanish and English.

 

 

 

Article 13

 

Mutual Agreement Procedure

 

  1. Where difficulties or doubts arise between the Parties regarding the implementation or interpretation of this Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement.

 

  1. In addition to the agreements referred to in paragraph 1, the competent authorities of the Parties may mutually agree on the procedures to be used under Articles 5, 6, 9 and 10.

 

  1. The competent authorities of the Parties may communicate with each other directly for purposes of reaching agreement under this Article.

 

  1. The Parties may also agree on other forms of dispute resolution should this become necessary.

 

 

 

Article 14

 

Entry into Force

 

  1. The Parties shall notify each other in writing through appropriate channels that the internal procedures required by each Party for the entry into force of this Agreement have been complied with.

 

  1. The Agreement shall enter into force after a period of three months following the date of receipt of the later of the notifications referred to in paragraph 1.

 

  1. The provisions of this Agreement shall have effect for any taxable periods, which could still be investigated at the moment of the information request, according to the laws of the Requesting Party.

 

This agreement shall have effect:

 

(a) for criminal tax matters on that date; and

(b) for all other matters covered in Article 1, in respect of taxable periods beginning on or after January 1st of the year next following the year in which the agreement entered into force or, where there is no taxable period, in respect of taxes due in respect of taxable events taking place on or after January 1st of the year next following the year in which the agreement entered into force.

 

 

  1. Jersey shall cease to be considered one of the territories referred to in paragraph 1 of the First Additional Provision of the Spanish Law to Avoid Tax Evasion (Disposición Adicional primera de la Ley 36/2006 de Medidas para la Prevención del Fraude Fiscal) of 29 November 2006 on the date on which this Agreement shall have effect.

 

  1. The information exchanged under this Agreement is considered to be “effective exchange of information” in accordance with the internal legislation of the Parties.

 

 

 

Article 15

 

Termination

 

  1. This Agreement shall remain in force until terminated by a Party. Either  Party may terminate the Agreement, through appropriate channels by giving written notice of termination.

 

  1. Such termination shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of notice of termination by the other Party.

 

  1. Notwithstanding any termination of this Agreement the Parties shall remain bound by the provisions of Article 8 with respect to any information obtained under this Agreement.

 

 

 

 

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.

 

DONE in duplicate in ________________ on the _________________ day of _________________, in the Spanish and English languages, all the texts being equally authentic.

 

 

For Jersey For  the Kingdom of Spain

 

 

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