Taxation (Exchange
of Information with Third Countries) (Jersey) Regulations 2008
THE STATES, in pursuance of Article 2(1)
of the Taxation
(Implementation) (Jersey) Law 2004 and paragraph 1.8.5 of the
Strategic Plan 2006-2011 approved by the States on 28th June 2006 and following
the decision of the States, taken on the day these Regulations are made, to
adopt Projet 192 of 2007, have made the following Regulations –
Commencement [see endnotes]
1 Interpretation
(1) In these Regulations,
unless the context otherwise requires –
“competent authority” means, in relation to Jersey, the
Minister for Treasury and Resources or his or her authorized representative
and, in relation to a third country, the person named as the competent
authority for that country in the tax information exchange agreement between it
and Jersey;
“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 tax information exchange
agreement for tax information regarding a person and that complies with the
requirements of that agreement;
“tax”, in relation to a request, means any tax listed in
the third column in the Schedule opposite the entry for the third country
making the request;
“tax information” has the meaning given in Regulation 1A;
“tax information exchange agreement” means an agreement
between Jersey and a third country for the exchange of tax information;
“taxpayer” means the person who is the subject of a
request;
“third country” means a country or territory that is
listed in the first column of the Schedule, subject to the description, if any,
opposite in the second column;
“third party notice” shall be construed in accordance
with Regulation 3(1) and (2).[1]
(2) [2]
(3) [3]
(4) [4]
(5) In these Regulations,
expressions that are also used in the Income Tax (Jersey)
Law 1961 have the same respective meanings as in that Law, unless the
context otherwise requires.
1A Tax information[5]
(1) For
the purposes of these Regulations “tax information” means
information that is foreseeably relevant to the administration or enforcement,
in the case of the person who is the subject of a request, of the domestic laws
of the third country whose competent authority is making the request concerning
any tax listed in the third column in the Schedule opposite the entry for that
third country, 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 Provision
of tax information by taxpayer[6]
(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.[7]
(2) A requirement under paragraph (1)
shall be made by notice in writing.
(3) [8]
(4) [9]
(5) [10]
(6) [11]
(7) [12]
(8) [13]
3 Provision
by other persons of tax information about taxpayer[14]
(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 12 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 taxpayer’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.
4 Time
for compliance with notices
(1) A notice under
Regulation 2 or Regulation 3 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.[15]
5 [16]
6 [17]
7 [18]
8 [19]
9 [20]
10 [21]
10A Restrictions
regarding requirement to provide information[22]
(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 2 or 3 may not be used in
evidence against the individual in any criminal proceedings, except proceedings
under Regulation 15(2).[23]
(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 3 shall not incur any civil or criminal liability by reason of
disclosing the information in compliance with the requirement.[24]
10B Manner
of provision of tax information[25]
(1) Where
tax information is information within an individual’s knowledge or
belief, an individual required by notice under Regulation 2 or 3 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.[26]
(2) Where
tax information is recorded in electronic or magnetic form, the person required
by notice under Regulation 2 or 3 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.[27]
(3) Where
tax information is information recorded in a document or any other record, the
person required by notice under Regulation 2 or 3 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).[28]
10C Keeping
of records[29]
(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.[30]
(5) In
paragraph (2), “financial services” has the same meaning as in
Article 1(1) of the Financial Services Commission (Jersey) Law 1998.
11 Protection
of evidence[31]
(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 2 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 3 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 2 or 3.
(3) Despite paragraph (2),
but subject to Regulation 10C, 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 2 or 3, 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 2
or 3 –
(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.
12 Search and
seizure[32]
(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 2;
(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 3;
(c) that
there are reasonable grounds for believing that a taxpayer will not comply with
a requirement made of the taxpayer under Regulation 2;
(d) that
there are reasonable grounds for suspecting that a person will not comply with
a requirement made of a third party under Regulation 3;
(e) that
there are reasonable grounds for believing that the use of the procedure in
Regulation 2 or 3 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.[33]
(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 the Comptroller of Revenue or an officer within the
meaning of Article 3 of the Revenue Administration
(Jersey) Law 2019.[34]
(13) An application for a warrant
shall not be made under this Regulation without the consent of the Attorney
General.
13 Procedure
where items are removed
(1) A person who removes
anything from any premises under Regulation 12 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.
14 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 2,
later than 14 days after the requirement arose under Regulation 2;
(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 3; 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 3.[36]
(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 3(4);
(b) that
the competent authority for Jersey has not provided the third party notice to
the taxpayer on a ground mentioned in Regulation 3(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 3(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 10B(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 2 or 3, 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.[37]
(4) In all other respects
the Royal Court shall apply the principles applicable on an application for
judicial review.
14A Further
appeal to Privy Council[38]
(1) An appeal lies to the
Privy Council from a decision of the Royal Court on a judicial review to which Regulation 14
applies.[39]
(2) An appeal under this Regulation
lies at the instance of –
(a) a
taxpayer, against a requirement made of that taxpayer under Regulation 2;
(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.[40]
(3) An appeal under this Regulation
lies only with the leave of the Privy Council.[41]
(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.[42]
(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.[43]
(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.
15 Offences[44]
(1) A person who, knowingly
and without reasonable excuse, contravenes Regulation 11(2) is guilty of
an offence.
(2) An individual who,
being required by notice under Regulation 2 or 3 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.[45]
(3) A person who knowingly
and without reasonable excuse –
(a) fails
to comply with a requirement imposed under Regulation 2(1) or 3(1); or
(b) contravenes
Regulation 3(7) or 12(9),
is guilty of an offence.[46]
(4) A person who, knowingly
and without reasonable excuse, obstructs a person who is executing a warrant
under Regulation 12 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.
16 Parties to
offences
(1) A
person who aids, abets, counsels or procures the commission of an offence under
these Regulations is also guilty of the offence and liable in the same manner
as a principal offender to the penalty provided for that offence.
(2) 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 or to be attributable to any neglect on the part
of –
(a) a
person who is a partner of the partnership or director, manager, secretary or
other similar officer of the body corporate;
(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.[47]
(3) If
the affairs of a body corporate are managed by its members, paragraph (2)
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.
16A Application[48]
(1) These
Regulations, apart from Regulation 16B, apply to tax information in
respect of a tax that is specified in the Schedule from the date on which a tax
information exchange agreement in respect of that tax comes into force.[49]
(2) There
shall be specified in the Schedule the date on which a tax information exchange
agreement came into force.
(3) The
Minister for External Relations shall, by Order, amend
the Schedule so as to add, for a third country –
(a) the
name of that third country and any description of it;
(b) the
description of tax in respect of which the tax information exchange agreement
with that third country is made; and
(c) the
date on which the tax information exchange agreement with that third country
came into force.[50]
16B Confidentiality
of information received under tax information exchange agreement[51]
(1) Information
received by the competent authority for Jersey from the competent authority for
a third country pursuant to a tax information exchange agreement shall be
disclosed only to persons, and used only for the purposes, described in that
agreement.
(2) A
person who knowingly contravenes paragraph (1) commits an offence and is
liable to a fine.
16C Transitional
provision[52]
(1) This
Regulation applies where, before the coming into force of the Taxation
(Exchange of Information with Third Countries) (Amendment No. 7) (Jersey)
Regulations 2013 (the ‘2013 Regulations’) –
(a) an
appeal has been brought under Regulation 14; 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 2013 Regulations.
(2) A
decision shall not be set aside or varied on a ground that would be
inadmissible under Regulation 14, as amended by the 2013 Regulations.
(3) In
determining an appeal under Regulation 14 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
2013 Regulations.
(6) Any
appeal shall be subject to Regulation 14A, as inserted by the
2013 Regulations, as if it arose from a judicial review made under
Regulation 14, as substituted by the 2013 Regulations.
16D Transitional
provision – United States of America[53]
(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 14 of the Taxation (United States
of America) (Jersey) Regulations 2006; 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 14 of the Taxation (United States of
America) (Jersey) Regulations 2006.
(3) In
determining an appeal under Regulation 14 of the Taxation (United States
of America) (Jersey) Regulations 2006 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 14A as if it arose from a judicial
review made under Regulation 14 of the Taxation (United States of America)
(Jersey) Regulations 2006.
17 Citation
These Regulations may be cited as the Taxation (Exchange of
Information with Third Countries) (Jersey) Regulations 2008.