Taxation (Exchange
of Information with Third Countries) (Jersey) Regulations 2008
Made 29th January 2008
Coming into force 5th
February 2008
THE STATES, in pursuance of Article 2(1) of the Taxation (Implementation) (Jersey)
Law 2004[1] 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 –
1 Interpretation
(1) In
these Regulations, unless the context otherwise requires –
“information” means
a fact, statement, document or record, in whatever form;
“possession”
includes custody, and also includes control;
“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;
“tax” means any tax
listed in the third column in the Schedule opposite the entry for a third
country;
“tax information”
means information that is foreseeably relevant to the administration and
enforcement of the domestic laws of a third country, including information that
is foreseeably relevant to –
(a) the
determination, assessment, enforcement or collection of tax with respect to a
person who is subject to that tax; or
(b) the
investigation or prosecution of a criminal matter in relation to that person;
“taxpayer” means a
person whose liability to pay tax is under examination or investigation in a
third country;
“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.
(2) For
the purposes of these Regulations, a person is resident in a third country
if –
(a) that
person is regarded as so resident under the laws of that country; or
(b) the
person is a legal person, partnership, corporation, trust, estate, association
or other entity, deriving its status as that entity from a law in force in the
third country.
(3) For
the purposes of these Regulations, a person is resident in Jersey if the person
is resident in Jersey for the purposes of the Income Tax (Jersey) Law 1961[2].
(4) In
this Law, a reference to a person’s residential status is a reference to
whether the person is resident in a third country or in Jersey or in some other
place.
(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.
2 Provision
of information by taxpayer
(1) The
Comptroller may require a taxpayer to provide to the Comptroller –
(a) a document
or record in the taxpayer’s possession that contains or in the reasonable
opinion of the Comptroller may contain tax information that is relevant to a
liability to tax to which the person is subject or may be subject, or to the
amount of any such liability;
(b) tax
information within the taxpayer’s knowledge or belief that the
Comptroller reasonably requires as being relevant to any such liability, or to
the amount of any such liability; and
(c) evidence
within the taxpayer’s possession that the Comptroller reasonably requires
as being relevant to the taxpayer’s residential status for the purposes
of these Regulations.
(2) A
requirement under paragraph (1) shall be made by notice in writing.
(3) Before
giving a notice under this Regulation, the Comptroller shall allow the taxpayer
a reasonable opportunity to provide to the Comptroller the document, record,
tax information or evidence concerned.
(4) When
giving a notice under this Regulation, the Comptroller shall also give to the
taxpayer a written
summary of the Comptroller’s reasons for the giving of the notice.
(5) Paragraph
(4) does not require the disclosure of information –
(a) if
its disclosure would identify or might identify a person who has provided information
that the Comptroller takes into account in deciding whether to give the notice;
(b) if
the Comptroller is satisfied that there are reasonable grounds for suspecting
that the taxpayer has committed a relevant criminal offence; or
(c) if
the Comptroller is satisfied that disclosure of information of that description
would prejudice the assessment or collection of tax.
(6) A
notice under this Regulation does not oblige a taxpayer to provide –
(a) a
document or record;
(b) tax
information; or
(c) evidence,
relating to the conduct of a pending appeal by the taxpayer in
respect of tax.
(7) A
taxpayer may comply with a notice to provide a document or record under this
Regulation by providing a copy of it instead of the original, if the copy is in
such form as the Comptroller may reasonably require.
(8) However,
if the taxpayer does provide a copy, the Comptroller may by notice in writing
require the taxpayer to make the original available for inspection.
3 Provision
by other persons of information about taxpayer
(1) This
Regulation applies if the Comptroller has reasonable grounds for
believing –
(a) that
a taxpayer may have failed to comply, or may fail to comply, with a domestic
law of a third country concerning tax; and
(b) that
any such failure has led, is likely to have led or is likely to lead to serious
prejudice to the proper assessment or collection of tax.
(2) If
this Regulation applies, the Comptroller may require any person other than the
taxpayer to provide to the Comptroller a document or record in the
person’s possession that contains or in the reasonable opinion of the
Comptroller may contain tax information that is relevant to –
(a) a
liability to tax to which the taxpayer is subject or may be subject;
(b) the
amount of any such liability; or
(c) the
taxpayer’s residential status for the purposes of these Regulations.
(3) A
requirement under paragraph (2) shall be made by notice in writing.
(4) Before
giving a notice under this Regulation, the Comptroller shall allow the person
of whom the requirement is to be made a reasonable opportunity to provide to
the Comptroller the document or record concerned.
(5) The
Comptroller shall give to the taxpayer –
(a) a
copy of the notice; and
(b) a written summary of the
Comptroller’s reasons for the giving of the notice.
(6) Paragraph
(5) does not require the disclosure of information –
(a) if
its disclosure would identify or might identify a person who has provided information
that the Comptroller takes into account in deciding whether to give the notice;
(b) if
the Comptroller is satisfied that there are reasonable grounds for suspecting
that the taxpayer has committed a relevant criminal offence; or
(c) if
the Comptroller is satisfied that disclosure of information of that description
would prejudice the assessment or collection of tax.
(7) A
person may comply with a notice to provide a document or record under this
Regulation by providing a copy of it instead of the original, if the copy is in
such form as the Comptroller may reasonably require.
(8) However,
if the person does provide a copy, the Comptroller may by notice in writing
require the person to make the original available for inspection.
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 30 days, beginning on the date
on which the notice is given to the person who is to comply with it.
5 Naming
of taxpayer under Regulation 3
A notice under Regulation 3 shall name the taxpayer to whom it
relates.
6 Copying
of information
If a document, record, tax information or evidence is provided to
the Comptroller in compliance with a requirement made by the Comptroller under
Regulation 2 or Regulation 3, the Comptroller may make and retain a
copy or extract of it.
7 Court
order for provision of information by taxpayer
(1) This
Regulation applies if the Royal Court is satisfied, on the application of the
Comptroller –
(a) that
a taxpayer has failed to comply with a requirement made of that taxpayer under
Regulation 2; or
(b) that
there are reasonable grounds for suspecting that a taxpayer will not comply
with such a requirement.
(2) If
this Regulation applies, the Royal Court may make an order that the taxpayer
must provide to the Comptroller, within such time as the order specifies –
(a) a document
or record in the taxpayer’s possession that contains tax information that
is relevant to a liability to tax to which the taxpayer is subject or may be
subject, or to the amount of any such liability;
(b) tax
information that the court specifies as being relevant to any such liability,
or to the amount of any such liability; or
(c) evidence
that the court specifies of the taxpayer’s residential status for the
purposes of these Regulations.
8 Court
order for delivery of document or record relating to taxpayer
(1) This
Regulation applies if the Royal Court is satisfied, on the application of the
Comptroller, of both of the following matters –
(a) that
a person of whom a requirement has been made under Regulation 3 appears to
have possession of a document or record to which paragraph (2) of that
Regulation refers; and
(b) that
any of the circumstances in paragraph (2) of this Regulation applies.
(2) The
circumstances to which this paragraph refers are –
(a) that
the person has failed to comply with the requirement under Regulation 3;
(b) that
there are reasonable grounds for suspecting that the person will not comply
with such a requirement; or
(c) that
the taxpayer to whom the requirement relates or any of the class of taxpayers
to whom it relates may have failed to comply, or may fail to comply, with any
provision of a domestic law of the third country concerning tax, and that any
such failure has led, is likely to have led or is likely to lead to serious
prejudice to the proper assessment or collection of tax.
(3) If
this Regulation applies, the Royal Court may make an order that the person of
whom the requirement has been made under Regulation 3 must provide the document
or record to the Comptroller within such time as the order specifies.
9 Documents
and records in electronic or magnetic form
If an order under Regulation 7 or Regulation 8 applies to
a document or record in electronic or magnetic form, the order is to be taken
to require the person to provide the information in the document or record in a
form in which the information is visible and legible.
10 Notice
of application for court order
A person is entitled –
(a) to
at least 14 days notice of the Comptroller’s intention to apply for
an order against the person under Regulation 7 or Regulation 8; and
(b) to
appear and be heard at the hearing of the application,
unless the Royal Court is satisfied that compliance with this
paragraph will seriously prejudice the investigation of a relevant criminal offence.
11 Protection
of evidence
(1) This
Regulation applies –
(a) if
the Comptroller has given a taxpayer a notice under Regulation 2 requiring
the taxpayer to provide to the Comptroller any document, record, tax
information or evidence;
(b) if
the Comptroller has given a person a notice under Regulation 3 requiring
the person to provide to the Comptroller any document or record;
(c) if
the Comptroller has given a person notice of the Comptroller’s intention
to apply for an order under either of Regulations 7 and 8.
(2) The
person shall not alter, conceal, destroy, or otherwise dispose of any document,
record, information or evidence to which the notice or application relates.
(3) This
Regulation does not prohibit a person from altering, concealing, destroying or
otherwise disposing of or disclosing anything –
(a) with
the leave of the Court; or
(b) with
the written permission of the Comptroller.
(4) This
Regulation does not prevent a person from altering, concealing, destroying or
otherwise disposing of anything to which a requirement of a notice under
Regulation 2 or Regulation 3 refers after the person has complied
with the notice.
(5) This
Regulation does not prevent a person from altering, concealing, destroying or
otherwise disposing of or disclosing anything to which an application under
Regulation 7 or Regulation 8 relates –
(a) after
the application has been dismissed or abandoned; or
(b) after
the application has been determined and the order or orders (if any) that have
been made under it have been complied with.
12 Search
and seizure
(1) On
an application made by the Comptroller, 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
an offence under these Regulations has been or is about to be committed on the
premises; or
(b) that
there is or may be on the premises anything that a person may be required, by a
notice given under Regulation 2 or Regulation 3, to provide to the
Comptroller.
(2) However,
a warrant may not be issued under paragraph (1) in the circumstances to
which sub-paragraph (b) of that paragraph refers unless the Bailiff is
satisfied that there are reasonable grounds for believing that use of the
procedure under Regulation 2 or Regulation 3 might seriously
prejudice an investigation concerning tax.
(3) A
warrant that is issued under this Regulation shall remain in force for
14 days and then cease to have effect.
(4) The
warrant authorizes every designated tax officer to enter and search the
premises, and for that purpose to take with him or her such other persons as
are reasonably necessary.
(5) On
entering the premises under the authority of the warrant, the person executing
it may seize and remove anything found there, if he or she has reasonable
grounds to believe that it may be required as evidence for the purposes of
proceedings under these Regulations.
(6) The
warrant does not authorize the seizure or removal of an item that is subject to
legal privilege.
(7) 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.
(8) No
application shall be made under this Article 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 Appeals
(1) The following persons have a right of appeal
to the Royal Court under these Regulations –
(a) a taxpayer, against a requirement made of
that taxpayer under Regulation 2(1);
(b) a person, against a requirement made of that
person under Regulation 3(2);
(c) a taxpayer, against a requirement made of another
person under Regulation 3(2) in relation to that taxpayer.
(2) An appeal under this Article shall be
brought within 21 days after the appellant is given notice in writing of
the requirement to which the appeal relates, or within such further time as the
Royal Court may allow.
(3) The effect of the requirement to which the
appeal relates shall be stayed pending its determination, unless the Royal
Court orders otherwise.
(4) On hearing the appeal, the Royal Court may
confirm, vary or set aside the requirement to which the appeal relates, and may
make such order as to the costs of the appeal as it thinks fit.
15 Offences
(1) A person who intentionally and without
reasonable excuse contravenes or attempts to contravene Regulation 11(2) is
guilty of an offence and liable to a fine.
(2) A person who intentionally and without
reasonable excuse fails to comply with a requirement under any of Regulation 2,
3, 7 or 8 is guilty of an offence and liable to a fine.
(3) A person who intentionally and without
reasonable excuse obstructs or attempts to obstruct a person who is executing a
warrant under Regulation 12 is guilty of an offence and liable to
imprisonment for 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 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.
(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.
17 Citation and
commencement
(1) These
Regulations may be cited as the Taxation (Exchange
of Information with Third Countries) (Jersey) Regulations 2008.
(2) These
Regulations come into force on the seventh day after they are made.
m.n. de la haye
Greffier of the States