New Tax Information Exchange Regulations in Force

New Tax Information Exchange Regulations in Force

On 6 November 2013, the Taxation (Exchange of Information with Third Countries) (Amendment No. 7) (Jersey) Regulations 2008 came into force, having only been lodged on 22 October.

As our previous Regulatory Group updater noted on 30 October:

The report accompanying the amendment states that its main objective is to address:

1. A number of perceived shortcomings with the current regime; and
2. Jersey's inclusion on the French list of non-cooperative jurisdictions.

The report signals a clear commitment to ensuring that tax information requests made of Jersey entities are dealt with quickly and in line with international standards.

Crucially, the amendments will apply retrospectively to existing requests, subject to certain exceptions.  The report envisages that this may expedite Jersey's removal from France's list of non-cooperative jurisdictions.

The key changes include:

• Limiting the statutory scope for appeal to judicial review grounds only (so that instead of an appeal being put on the basis that the notice is outside the scope of the Regulations, the appeal will in future have to be put on the basis that the Comptroller was acting illegally, irrationally, or under some procedural impropriety).
• Removing several references to the need to act reasonably and to only demanding information that is reasonably required (presumably to make the Comptroller's decisions less susceptible to judicial review).
• Deleting the requirement for the Comptroller to provide a summary of the reasons for giving the notice (presumably for the same reasons as above).
• Reducing the time period for responding to a notice from 30 to 15 days.
• Curtailing the appeal route itself.  If an appellant loses its case before the Royal Court, the appellant can only appeal to the Privy Council (with leave), as opposed to the existing right of appeal to the Jersey Court of Appeal.
• Restricting the time period for any application for judicial review to 14 days after receipt of the notice.
• Carving certain matters out of the scope of judicial review altogether (for example it will not be possible to judicially review any decision by the Comptroller not to allow a third party recipient to disclose a third party notice to a tax payer).
• Requiring information to be provided, even when a judicial review has been commenced (however, this information will not be provided to the foreign tax authority until the judicial review has been determined unless the Royal Court grants permission).

The Jersey TIEA regime will therefore now require quicker and more decisive action from recipients of notices, in particular recipients of third party notices.

It is understood that a challenge by way of judicial review to the validity of the Regulations themselves may be pending, as foreshadowed in the recent judgment in APEF Management Company 5 Ltd v Comptroller of Taxes [2013] JRC 205A.  A further briefing will be issued in the event that such a challenge proceeds.

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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