Taxation (Double
Taxation) (Jersey) Regulations 2010
1 Interpretation
(1) In
these Regulations, unless the context otherwise requires –
“1961 Law”
means the Income Tax
(Jersey) Law 1961;
“DTA” means an
agreement for the avoidance of double taxation made between Jersey and a third
country;
“relevant criminal
offence” means an offence that is criminal by reason of the law of a
third country that is designated as a criminal law, for which purpose it is
immaterial whether it is contained in a tax law, in a criminal code or in any
other law;
“request”
means a request that is made by the competent authority for a third
country under a DTA for tax information regarding a person and that complies
with the requirements of the DTA;
“tax”, in
relation to a request, means the tax in respect of which the request is made;
“tax information”
has the meaning given in Regulation 1A;
“taxpayer”
means the person who is the subject of a request;
“third country”
means a country or territory that is listed in column 1 of the Schedule,
subject to the description, if any, opposite in column 2 of the Schedule,
with which Jersey has made a DTA;
“third party
notice” shall be construed in accordance with Regulation 7(1) and
(2).[1]
(2) [2]
(3) [3]
(4) In
these Regulations, a reference, in relation to a DTA, to the competent
authority for Jersey or the competent authority for a third country shall be
construed in accordance with that DTA.
(5) These
Regulations apply to an amendment to a DTA as they apply to a DTA and,
accordingly, a reference in them to a DTA includes a reference to an amendment
to a DTA.
1A Tax information[4]
(1) For the purposes of
these Regulations “tax information” means information that is
foreseeably relevant to the administration or enforcement of the third country
whose competent authority is making the request under a DTA concerning taxes of
the third country that may be the subject of the exchange of information under
the DTA, including information that is foreseeably relevant to –
(a) the
determination or assessment of the liability of the person to such taxes;
(b) the
determination, assessment and collection of such taxes;
(c) the
recovery and enforcement of such taxes;
(d) the
recovery and enforcement of tax claims; or
(e) the
investigation or prosecution of tax matters.
(2) Information is
foreseeably relevant to the administration or enforcement of the domestic laws
of a third country –
(a) if
there are reasonable grounds to believe that there is sufficient connection
between the person who is the subject of the request and the domestic laws of
the third country and that there is a reasonable possibility those laws may
apply to the person; and
(b) regardless
of whether there are matters that are still to be determined by the third
country in respect of the person’s liability to tax.
(3) When determining
whether information is foreseeably relevant regard must be had to the Model Tax
Convention on Income and on Capital: Condensed Version (including the
commentary), as updated from time to time, published by the Organisation for
Economic Cooperation and Development.
(4) Tax information may be –
(a) information
within an individual’s knowledge or belief; or
(b) information
recorded in a document or any other record in any format, that a person has in their
possession, custody or control.
2 DTAs
given effect[5]
(1) A DTA shall have
effect, in accordance with its terms, notwithstanding the provisions of the
1961 Law or any other enactment.
(2) The operation of the
1961 Law shall be modified with the effect that Part 14 of the 1961 Law
shall apply as if a DTA were an arrangement having effect under Article 111
of that Law.
(3) The Schedule has effect
as an index of DTAs and the dates they entered into force.
3 Orders[6]
The
Minister for External Relations shall, by Order, amend the
Schedule so as to add, in relation to a DTA –
(a) the name of the third
country, and any description of the third country, with which the DTA is made;
and
(b) the date on which the
DTA with that third country entered into force.
4 Power
to disclose information for purposes of DTA
(1) Notwithstanding
anything contained in the 1961 Law or any other enactment, the competent
authority for Jersey may, in the discharge of his or her obligations under a
DTA, provide tax information to the competent authority for the third country
with which the DTA has been made.
(2) Notwithstanding
anything contained in the 1961 Law or any other enactment, the competent
authority for Jersey may provide tax information to the competent authority for
Jersey, for the purposes of the discharge of the obligations described in
paragraph (1).[7]
5 Confidentiality
of information received under DTA
(1) Information
received by the competent authority of Jersey from the competent authority of a
third country pursuant to a DTA shall be disclosed only to persons, and used
only for the purposes, described in the DTA.
(2) A
person who knowingly contravenes paragraph (1) commits an offence and is
liable to a fine.
6 Provision
of tax information by taxpayer[8]
(1) Where
the competent authority for Jersey decides to respond to a request concerning a
taxpayer, the competent authority for Jersey shall require the taxpayer to
provide to the competent authority for Jersey all such tax information that the
competent authority for Jersey requires for that purpose.[9]
(2) A
requirement under paragraph (1) shall be made by notice in writing.
(3) [10]
(4) [11]
(5) [12]
(6) [13]
(7) [14]
(8) [15]
7 Provision
by other persons of tax information about taxpayer[16]
(1) Where
the competent authority for Jersey decides to respond to a request concerning a
taxpayer, the competent authority for Jersey shall require a third party, being
a person other than the taxpayer, to provide to the competent authority for
Jersey all such tax information that the competent authority for Jersey
requires for that purpose.
(2) A
requirement under paragraph (1) shall be made by notice in writing.
(3) Where
a third party notice does not name the taxpayer to whom it relates, it must
provide an account number or other identification for the tax information
required.
(4) Subject
to paragraph (5), the competent authority for Jersey shall send to the
taxpayer to whom a third party notice relates a copy of the third party
notice –
(a) in
a case where, at the time the third party notice is given, the competent
authority for Jersey does not know the taxpayer’s name and address – within 7 days
after the third party has provided to the competent authority for Jersey the
tax information required by the third party notice; or
(b) in
any other case – within 7 days
after the third party notice is given.
(5) Paragraph (4)
does not require the disclosure or provision of the third party notice to a
taxpayer –
(a) if
the competent authority for Jersey does not know the taxpayer’s name and
address;
(b) if
its disclosure or provision would identify or might identify a person who has
provided information that the competent authority for Jersey takes into account
in deciding whether to give the notice;
(c) if
the competent authority for Jersey is satisfied that there are reasonable
grounds for suspecting that the taxpayer has committed a relevant criminal
offence;
(d) if
the competent authority for Jersey is satisfied that disclosure of information
of the description contained in the notice may prejudice the assessment,
collection or recovery of tax or the investigation or prosecution of tax
matters; or
(e) if
the third country has requested that the taxpayer should not be informed of any
matter relating to the request on the ground that –
(i) disclosure
to the taxpayer would identify or might identify a person who has provided
information relating to the third party request,
(ii) there
are reasonable grounds for suspecting that the taxpayer has committed a
relevant criminal offence, or
(iii) disclosure
of information of the description contained in the notice may prejudice the
assessment, collection or recovery of tax or the investigation or prosecution
of tax matters.
(6) The
third party notice shall –
(a) state
whether the competent authority prohibits the third party from disclosing to
the taxpayer the third party notice or any information relating to the notice
(including any information about a warrant issued under Regulation 16 or
other information relating to enforcement); and
(b) if
the third party notice prohibits that disclosure to the taxpayer, state the
ground on which it prohibits that disclosure, by reference to one or more
grounds mentioned in paragraph (5).
(7) The
third party shall not disclose the third party notice nor any information
relating to it to the taxpayer that it is prohibited from so disclosing by
virtue of any prohibition contained in the third party notice
except –
(a) with
the written consent of the competent authority for Jersey; or
(b) with
the consent of the Royal Court.
(8) The
competent authority for Jersey shall as soon as practicable send to the
taxpayer the third party notice if the Royal Court gives consent to the third
party to disclose it.
(9) For
the purposes of paragraph (5) the competent authority for Jersey shall not
be treated as knowing the name or address of the taxpayer by virtue of anything
provided by the third party unless, upon providing the tax information, the
third party expressly draws to the attention of the competent authority for
Jersey the tax payer’s name or address.
(10) In
this Regulation, a reference to the taxpayer’s address is a reference to
any address at which the taxpayer may be given information.
8 Time
for compliance with notices
(1) A
notice under Regulation 6 or Regulation 7 shall specify a time within
which the person to whom it is given must comply with it.
(2) The
time to be specified shall be not less than 15 days, beginning on the date
on which the notice is given to the person who is to comply with it.[17]
9 [18]
10 [19]
11 [20]
12 [21]
13 [22]
14 [23]
14A Restrictions
regarding requirement to provide tax information[24]
(1) Nothing
in these Regulations requires a person to provide to the competent authority
for Jersey information that is subject to legal professional privilege.
(2) The
answers given or a statement or deposition made by an individual in compliance
with a notice given under Regulation 6 or 7 may not be used in evidence
against the individual in any criminal proceedings, except proceedings under Regulation 19(2).[25]
(3) Notwithstanding
any other enactment (whenever passed or made) or the terms of any contract
(whenever made), a person required to provide information by notice given under
Regulation 7 shall not incur any civil or criminal liability by reason of
disclosing the information in compliance with the requirement.[26]
14B Manner
of provision of tax information[27]
(1) Where
tax information is information within an individual’s knowledge or
belief, an individual required by notice under Regulation 6 or 7 to
provide that information shall do so by answering questions, or by making a
statement or deposition in a form that would be receivable in evidence
according to the law of the third country making the request.[28]
(2) Where
tax information is recorded in electronic or magnetic form, the person required
by notice under Regulation 6 or 7 to provide that information
shall –
(a) provide
it in the form required by the notice; and
(b) in
the case where the notice requires it to be provided in electronic form,
provide it in a form that is readily accessible and capable of being produced
in a visible and legible form.[29]
(3) Where
tax information is information recorded in a document or any other record, the
person required by notice under Regulation 6 or 7 to provide that
information shall, as further required –
(a) provide
a copy of the document, authenticated in such manner that the copy would be
receivable in evidence according to the law of the third country making the
request; or
(b) produce
the original, for the purpose of the competent authority for Jersey making a
copy authenticated as described in sub-paragraph (a).[30]
14C Keeping
of records[31]
(1) A
person who is liable to pay tax in a third country shall keep any document that
contains tax information relevant to the person’s liability.
(2) A
person who provides financial services to a person described in paragraph (1),
shall keep any document created in the provision of those services that
contains tax information relevant to the liability of the person described in paragraph (1).
(3) A
person required by paragraph (1) or (2) to keep a document shall do so for
a period of 6 years beginning at the end of the year in which the tax
information was recorded in the document.
(4) A
person who, without reasonable excuse, fails to comply with this Regulation
shall be guilty of an offence and liable to a fine of level 3 on the
standard scale.[32]
(5) In
paragraph (2), “financial services” has the same meaning as in
Article 1(1) of the Financial Services Commission (Jersey) Law 1998.
15 Protection of
evidence[33]
(1) This
Regulation applies if the competent authority for Jersey has –
(a) requested
a taxpayer in writing to provide any tax information to it;
(b) given
a taxpayer a notice under Regulation 6 requiring the taxpayer to provide
to the competent authority for Jersey any tax information;
(c) requested
a person, other than the taxpayer, in writing to provide to the competent
authority for Jersey any tax information in respect of that taxpayer; or
(d) given
a person a notice under Regulation 7 requiring the person to provide to
the competent authority for Jersey any tax information.
(2) A
person in respect of which paragraph (1) applies shall not alter, conceal,
destroy, or otherwise dispose of any tax information that is requested by the
competent authority for Jersey or subject to a notice under Regulation 6
or 7.
(3) Despite
paragraph (2), but subject to Regulation 14C, the person may alter,
destroy or otherwise dispose of tax information to which the competent
authority’s request relates –
(a) in a
case where a written request was made –
(i) if
no notice has been given under Regulation 6 or 7, upon the expiry of
12 months after the date of the written request, or
(ii) if
the competent authority for Jersey has withdrawn the request, any time after
that withdrawal; and
(b) in a
case where a notice has been given under Regulation 6 or 7 –
(i) with
the written permission of the competent authority for Jersey, or
(ii) where
the competent authority for Jersey has refused to grant permission, or failed
to respond to the applicant’s request for permission within 6 months
of the request, with the leave of the Royal Court.
16 Search and
seizure[34]
(1) The
Bailiff may issue a warrant under this Regulation in respect of any premises if
the Bailiff is satisfied that there are reasonable grounds for
believing –
(a) that
a taxpayer has failed to comply with a requirement made of that taxpayer under
Regulation 6;
(b) that
a person to whom a third party notice has been given has failed to comply with
a requirement made of that third party under Regulation 7;
(c) that
there are reasonable grounds for believing that a taxpayer will not comply with
a requirement made of the taxpayer under Regulation 6;
(d) that
there are reasonable grounds for suspecting that a person will not comply with
a requirement made of a third party under Regulation 7;
(e) that
there are reasonable grounds for believing that the use of the procedure in
Regulation 6 or 7 might seriously prejudice an investigation
concerning the assessment, collection or recovery of tax or the investigation
or prosecution of tax matters; or
(f) that
an offence under these Regulations has been or is about to be committed on the
premises,
and there is or may be in
the premises tax information in respect of a taxpayer or evidence relating to
the commission of an offence under these Regulations or to a relevant criminal
offence.
(2) An
application for the issue of a warrant under paragraph (1) may be made
by –
(a) where
the application is on the ground specified in paragraph (1)(a), (1)(b),
(1)(c), (1)(d) or (1)(e), a designated tax officer;
(b) where
the application is on the ground in paragraph (1)(f), a police officer.
(3) A
warrant issued under this Regulation shall –
(a) remain
in force for 14 days and shall then cease to have effect; and
(b) authorize
the person executing it to enter and search the premises specified in it and,
for that purpose, take with him or her such other persons as are reasonably
necessary.
(4) On
entering the premises under the authority of the warrant, the person executing
it may seize and remove anything found there if –
(a) in
the case of a warrant issued on the ground in paragraph (1)(a), (1)(b),
(1)(c), (1)(d) or (1)(e), the person has reasonable grounds to believe that it
is a thing specified in the warrant;
(b) in
the case of a warrant issued on the ground in paragraph (1)(f), the person
has reasonable grounds to believe that it may be required as evidence for the
purposes of criminal proceedings under these Regulations.
(5) The
warrant does not authorize the seizure or removal of an item that is subject to
legal privilege.
(6) Where
any tax information is kept by means of a computer at the premises the person
executing the warrant –
(a) may
have access to, and inspect and check the operation of, any computer and any
associated apparatus or material which is or has been in use in connection with
the tax information;
(b) may
require any person having charge of, or otherwise concerned with the operation
of, the computer, apparatus or material to afford him or her such assistance as
he or she may reasonably require; and
(c) may
require the records to be produced in a form in which they may be taken away.
(7) Where
anything is seized and removed in exercise of a warrant issued on the ground
specified in paragraph (1)(a), (1)(b), (1)(c), (1)(d) or (1)(e), the
person executing the warrant shall pass the thing seized or removed to the
competent authority for Jersey.
(8) Notwithstanding
any other enactment (whenever passed or made) or rule or principle of law a
person required by paragraph (6) to pass anything to the competent
authority for Jersey shall not incur any civil or criminal liability by reason
of complying with the requirement.
(9) No
person shall disclose to the taxpayer in respect of whom the tax information or
the warrant relates any information relating to the warrant, or the execution
of the warrant that has been issued under paragraph (1)(e) or (1)(f)
except –
(a) with
the written consent of the competent authority for Jersey; or
(b) with
the consent of the Royal Court.
(10) Any
application to the Royal Court in respect of a warrant that has been issued on
a ground specified in paragraph (1)(a), (1)(b), (1)(c), (1)(d) or (1)(e)
shall not be considered by the Court if it is received 7 or more days
after the execution of the warrant.
(11) The
time limit referred to in paragraph (10) does not apply in respect of an
application for consent to disclose information to a taxpayer.
(12) In
this Regulation, “designated tax officer” means –
(a) the
Comptroller; or
(b) each
other officer who is designated in writing for the purposes of this Regulation
by the Comptroller.
(13) An
application for a warrant shall not be made under this Regulation without the
consent of the Attorney General.
17 Procedure where
items are removed
(1) A
person who removes anything from any premises under Regulation 16 shall,
if requested to do so by a person described in paragraph (2) of this
Regulation, provide that person with a record as to what has been removed.
(2) The
persons to whom this paragraph refers are –
(a) an
occupier of the premises; or
(b) a
person who had possession of the thing immediately before its removal.
(3) The
record shall be provided within a reasonable time.
(4) If
the thing removed is of such a nature –
(a) that
a photograph or copy of it is sufficient for use as evidence in proceedings
under these Regulations; or
(b) that
a photograph or copy of it is sufficient for any forensic examination or investigation
under these Regulations,
the thing removed may not
be retained for longer than is necessary to establish that fact and to obtain
the photograph or copy.
18 Judicial review:
limitations[35]
(1) Despite
any Rule made to the contrary under the Royal Court
(Jersey) Law 1948, an application for leave to apply for
judicial review may not be made –
(a) by a
taxpayer, against a requirement made of that taxpayer under Regulation 6,
later than 14 days after the requirement arose under Regulation 6;
(b) by a
person, against a requirement made of that person in a third party notice,
later than 14 days after the third party notice was given to that person
under Regulation 7; or
(c) by a
taxpayer, against a requirement made of a third party in respect of that
taxpayer, later than 14 days after the copy of the third party notice was
given to that taxpayer under Regulation 7.
(2) An
application for judicial review may not be made on any of the following
grounds –
(a) that
the competent authority for Jersey has not provided the third party notice to a
taxpayer within the time limits specified in Regulation 7(4);
(b) that
the competent authority for Jersey has not provided the third party notice to
the taxpayer on a ground mentioned in Regulation 7(5);
(c) that
the competent authority for Jersey has prohibited a third party from disclosing
the third party notice to the taxpayer, or any information relating to the
notice to the taxpayer on a ground mentioned in Regulation 7(5); or
(d) that
the competent authority for Jersey has required tax information to be
authenticated in a manner that is not required for the purposes of
Regulation 14B(3).
(3) Despite
any application for leave to apply for judicial review being made –
(a) a
taxpayer or a third party shall provide the competent authority for Jersey the
information requested in the notice served under Regulation 6 or 7,
as the case may be, within the time limits specified in the notice; but
(b) the
competent authority for Jersey shall not provide to the competent authority for
the third country the tax information obtained under these Regulations unless –
(i) the
application for leave to apply for judicial review or any subsequent
application for judicial review is dismissed,
(ii) the
application for leave to apply for judicial review or any subsequent
application for judicial review is withdrawn or discontinued, or
(iii) the
competent authority for Jersey is permitted to do so by the Royal Court.
(4) In
all other respects the Royal Court shall apply the principles applicable on an
application for judicial review.
18A Further appeal to Privy Council[36]
(1) An
appeal lies to the Privy Council from a decision of the Royal Court on a
judicial review to which Regulation 18 applies.
(2) An
appeal under this Regulation lies at the instance of –
(a) a
taxpayer, against a requirement made of that taxpayer under Regulation 6;
(b) a
person, against a requirement made of that person in a third party notice;
(c) a
taxpayer, against a requirement made of a third party in respect of that
taxpayer; or
(d) the
competent authority for Jersey.
(3) An
appeal under this Regulation lies only with the leave of the Privy Council.
(4) An
application to the Privy Council for leave to appeal
under this Regulation against a decision shall be made before the end of the
period of 14 days commencing on the day on which the Royal Court makes its
decision.
(5) If
leave to appeal under this Regulation is granted, the appeal shall be brought
before the end of the period of 14 days commencing on the day on which
leave is granted.
(6) If
paragraph (5) is not complied with –
(a) the
appeal shall be taken to have been brought; and
(b) the
appeal shall be taken to have been dismissed by the Privy Council immediately
after the end of the period specified in that paragraph.
(7) For
the purpose of paragraph (6)(b) –
(a) any
power of a court to extend the period permitted for giving notice of appeal;
and
(b) any
power of a court to grant leave to take a step out of time,
shall be disregarded.
(8) The
Privy Council may allow or dismiss the appeal.
19 Offences[37]
(1) A person who, knowingly
and without reasonable excuse, contravenes Regulation 15(2) is guilty of
an offence.
(2) An individual who,
being required by notice under Regulation 6 or 7 to provide
information by answering questions or by making a statement or deposition –
(a) knowingly
or recklessly gives an answer or makes a statement or deposition which is
false, misleading or deceptive in a material particular; or
(b) knowingly
or recklessly withholds any information the omission of which makes the
information provided misleading or deceptive in a material particular,
is guilty of an offence.[38]
(3) A person who knowingly
and without reasonable excuse –
(a) fails
to comply with a requirement imposed under Regulation 6(1) or 7(1);
or
(b) contravenes
Regulation 7(7) or 16(9),
is guilty of an offence.[39]
(4) A person who, knowingly
and without reasonable excuse, obstructs a person who is executing a warrant
under Regulation 16 is guilty of an offence.
(5) A person guilty of an
offence against this Article is liable to imprisonment for a term of 12 months
and a fine.
20 Offences –
general
(1) If
an offence under these Regulations by a limited liability partnership, separate
limited partnership or body corporate is proved to have been committed with the
consent or connivance of –
(a) a
person who is a partner of the partnership or director, manager, secretary or
other similar officer of the body corporate; or
(b) a
person purporting to act in any such capacity,
the person is guilty of
the offence and liable in the same manner as the partnership or body corporate
to the penalty provided for that offence.[40]
(2) If
the affairs of a body corporate are managed by its members, paragraph (1)
applies in relation to acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
body corporate.
20A Transitional provision[41]
(1) This
Regulation applies where, before the coming into force of the Taxation
(Miscellaneous Provisions) (Jersey) Regulations 2014 (the “2014 Regulations”) –
(a) an
appeal has been brought under Regulation 18; and
(b) no
date has been set to hear the appeal, or a date has been set which is more than
28 days after the coming into force of the 2014 Regulations.
(2) A
decision shall not be set aside or varied on a ground that would be
inadmissible under Regulation 18, as amended by the 2014 Regulations.
(3) In
determining an appeal under Regulation 18 the Court must apply the principles
applicable on an application for judicial review.
(4) If
the Court decides that a notice or requirement should be set aside or varied it
may make any such order, or give any such relief, as may be made or given in
proceedings for judicial review.
(5) If
the appellant discontinues an appeal to which this Regulation applies, the
competent authority for Jersey shall be liable to pay any costs incurred in the
bringing of the appeal where it appears to the Royal Court that the appeal
would have succeeded but for the coming into force of the
2014 Regulations.
(6) Any
appeal shall be subject to Regulation 18A as if it arose from a judicial
review made under Regulation 18, as substituted by the
2014 Regulations.
21 Citation
These Regulations may be
cited as the Taxation (Double Taxation) (Jersey) Regulations 2010.