Antigua and Barbuda Tax Information Exchange Act 2002

Link to law: http://laws.gov.ag/acts/2002/a2002-14.pdf

No. 14 of 2002. The Antigua and Barbuda Tax 1 ANTIGUA
Information Exchange Act 2002. AND

BARBUDA

[ L.S. ]

I Assent,

James B. Carlisle,
Governor-General.

16th December, 2002.

ANTIGUA AND BARBUDA

No. 14 of 2002

AN ACT to establish procedures to enable Antigua and Barbuda
to comply with requests made under any tax information
exchange agreements and to make provision for other mat-
ters in connection therewith.

[ 27th December, 2002 ]

ENACTED by the Parliament of Antigua and Barbuda as
follows -

1. This Act may be cited as the Antigua and Barbuda Tax Short title.
Information Exchange Act 2002.

2. (1) In this Act, unless the context otherwise requires - Interpretation.

"Agreement" means an arrangement between Antigua and
Barbuda and any other country for establishing a taxa-
tion treaty or tax information exchange agreement;

"Business" includes profession or trade;

ommi missioner" means the person appointed by the
Public Service Commission as Commissioner of Inland
Revenue under section 3 of the Inland Revenue Admin-
istration Act; Cap. 217.

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"Competent Authority" means any person designated in
any Agreement as a Competent Authority or the person
referred to in subsection (2) to exercise the powers or per-
form the functions conferred upon the Competent Author-
ity under that Agreement or this Act;

"Contracting States," mean the Government of a foreign
country and the Government of Antigua and Barbuda;

"document" includes any book, paper, statement, account,
writing or record and any device by means of which ma-
terial is recorded or stored;

"information" means any fact or statement, in any form
whatever, that may be relevant or material to tax admin-
istration and enforcement, including (but not limited to):

(i) testimony of an individual, and

(ii) documents, records or tangible property of a
person or Contracting State;

"Person" includes an individual, partnership, corporation,
trust, estate, association or other legal entity;

"Premises" includes any place whatsoever and any means
of transport;

"Request" means an application made pursuant to an
Agreement;

"Requesting State" and "Requested State" mean, respec-
tively, the Contracting State applying for or receiving in-
formation and the Contracting State providing or requested
to provide information;

"Regulations" mean reguiations made under section 13;

"the Minister" means the Minister responsible for Finance.

(2) For the purposes of this Act the Commissioner is desig-
nated to exercise the powers and perform the duties of the Com-
petent Authority.

(3) A reference in this kc t to the performance of a function
includes reference to the performance of a duty or the exercise
of a power or right.

No. 14 of 2002. The Antigua and Barbuda Tax 3
Information Exchange Act 2002.

3. (1) This Act applies to the implementation in Antigua and
Barbuda of any Agreement under which Antigua and Barbuda
is required to provide assistance in compliance of obligations
assumed by Antigua and Barbuda under any such Agreement.

(2) No provision of an Agreement is enforceable in Antigua
and Barbuda unless such Agreement is ratified by a Resolution
of the House of Representatives.

4. (1) A request must be in writing and signed by or on be-
half of the Competent Authority of the requesting State or by
any person designated by the Competent Authority to perform
the functions of the Competent Authority under any Agreement.

(2) A request shall contain the following -

(a) the particulars of the information sought as identi-
fied in the request;

(b) the description of the requested information;

(c) the particulars that the information sought is in
Antigua and Barbuda and that a person specified in
the request has or may have the information in his
possession, custody, or control;

(d) the identity of the taxpayer in respect of whom the
information is sought;

(e) a statement showing the relationship of the infor-
mation to the identified taxpayer;

(jj the purpose for which the information is required
(For example for determining, assessing and col-
lecting taxes or for investigation or prosecution of
tax offences or offences involving the contraven-
tion of a tax administration law);

(g) where the request is in respect of determining, as-
sessing and collecting of tax, the law imposing the
tax must be specified; where the request involves
contravention of a tax administration, the law con-
travened or believed to have been contravened must
be specified;

ANTIGUA
AND

BARBUDA

Application of
Act.

Procedure in
respect of a
request.

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(h) a statement that the information being sought is
forceably relevant or material to the enforcement
in the requesting State of the domestic laws in re-
spect of determining, assessing and collecting taxes
or for the prosecution of tax offences or involves
the contravention of tax administration law;

(i) that the information relates to the taxable period
specified in the request and that the period in re-
spect of which the information is sought is not
barred by the applicable statute of limitation of the
requesting State.

(4) Subject to subsections (1) and (2), a request shall be in
such form as may, from time to time, be prescribed by regula-
tion.

Authority to 5. (1) The Commissioner may, in the execution of any re-
obtain infoma- quest, require an officer in the employment of the Government
tion.

or any local Government or other public body or statutory au-
thority to supply such pariculars as may be required for the
purposes of this Act and which may be in the possession of
such officer.

(2) The Commissioner may, in the execution of any request
under any Agreement -

(a) examine any books; papers, records, or other prop-
erty that may be relevant or material to such re-
quest;

(b) question any person having knowledge or in pos-
session, custody or control of information which
may be relevant or material to such request;

(c) compel any person having knowledge or in posses-
sion, custody or control of information which may
be relevant or material to such request to appear at
a stated time and place and testify and produce
books, papers, records, or other tangible property;

(d) take such testimony of any individual;

(e) specify the time and place for the taking of testi-
mony or the production of books, papers, records,
and other tangible property;

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permit persons designated by the Competent Au-
thority of the requesting State, including the tax-
payer identified under section 4(2)(d), counsel for
the taxpayer and persons authorised to administer
and enforce the domestic laws ofthe requesting State
covered by the Agreement, to be present;

(g) allow persons permitted to be present with an op-
portunity to question, directly or through the Com-
missioner, the person giving testimony or produc-
ing books, papers, records or other tangible prop-
erty;

(h) secure original and unedited books, papers, records
and other tangible property;

(i) secure or produce true and correct copies of origi-
nal and unedited books, papers and records;

0;) determine the authenticity of books, papers, records
and other tangible property produced;

(k,) examine the person producing books, papers,
records and other tangible property regarding the
purpose for which and the manner in which the item
produced is or was maintained;

(I) permit the Competent Authority of the requesting
State to provide written questions to which the per-
son producing books, papers, records and other tan-
gible property is to respond regarding the item pro-
duced.

(3) Notwithstanding the provisions of any other law, the Com-
missioner shall obtain and provide information held by finan-
cial institutions, nominees, or persons acting in agency or fidu-
ciary capacity (not including information that would reveal con-
fidential co&nunications between a client and an attorney, so-
licitor or other legal representative where the client seeks legal
advice), or information respecting ownership interests in a per-
son.

(4) The Commissioner shall provide the Competent Author-
ity of the requesting State copies of publicly available records,

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including documents or information in any form which relates
to tax information covered by this Act and in the possession of
a government department or agency of the Government in
Antigua and Barbuda.

(5) The Commissioner may provide to the Competent Au-
thority of the requesting State copies of any records, including
documents or information in any form which relates to tax in-
formation covered by the Agreement, and which are in the
possession of a government department or agency in Antigua
and Barbuda, but which are not publicly available, to the same
extent and under the same conditions as such copies would be

Cap. 212. available to the Commissioner under the Income Tax Act.

(6) Subject to this section, where the Commissioner receives
a request that complies with the requirements of section 4, he
shall provide information to the Competent Authority of the
requesting State in the form and manner specified in regula-
tions made under section 13.

Power to require 6. (1) Where the Commissianer receives a request which
production of complies with the requirements of section 4, he shall issue a
information. written notice to the person referred to in section4(2)(c) direct-

ing such person to deliver to .the Commissioner the requested
information.

(2) The Commissioner shall send a copy of the notice re-
ferred to in subsection (1) to the person identified under section
4(2)(d).

(3) A person who is directed by a notice under subsection
(1) to deliver information shall deliver it to the Commissioner
in accordance with the notice if that person has the information
in his possession or has custody or control of it.

(4) A notice issued under subsection (1) must -

(a) contain the relevant details of the information
sought; and

(b) subject to subsection (9, specify the time within
which the information sought is to be delivered to
the Commissioner, which time shall not be more
than fourteen days.

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(5) The Commissioner may extend the time specified in the
notice where he considers that the circumstances warrant an
extension of the time.

(6) A person complies with a notice under subsection (1 ) if
he delivers the requested information to the Commissioner in
accordance with the terms of the notice.

(7) A notice given in a request to produce information under
this section to a person is an absolute defense to any claim
brought against that person in respect of any action taken or
any omission made by him in good faith in compliance with the
notice.

(8) Where the Commissioner receives information in com-
pliance with a notice under subsection ( I ) , he shall without de-
'lay forward the information to the Competent Authority of the
requesting State.-

7. (1 ) The Commissioner or an officer in his department Power to enter
authorised by him in writing may apply to a magistrate under premises to
and in accordance with the provisions of this section for a war- qbtain informa-

tlon.
rant to enter upon premises for the purpose of enforcing a no-
tice issued under section 6.

(2) Any officer so authorised unde; subsection (1) must pro-
duce to the magistrate the written authority signed by the Corn-
missioner.

(3) If on information given on oath by such an officer, a
magistrate is satisfied that there is reasonable ground for sus-
pecting that an offence against this Act has been, or is being, or
is about to be committed on any premises endangering the de-
livery of information sought by the Commissioner, the Magis-
trate may issue a warrant, in writing, authorizing the officer to
enter and search the premises, if necessary by force, at any time
within 14 days commencing on the day on which the warrant is
signed by the magistrate.

(4) In issuing a warrant under this section, the magistrate
may impose such restrictions upon the execution of the war-
rant, in accordance with any law in force in Antigua and Barbuda.

(5) An officer entering premises by virtue of a warrant under
this section may be accompanied by a police officer and such

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other person and equipment as he considers necessary to enable
him to enforce the warrant, and on leaving such premises en-
tered by virtue of a warrant under this section, shall, if they are
unoccupied or the occupier is temporarily absent, leave them as
effectively secured against trespassers as he found them.

(6) On entering any premises by virtue of a warrant under
this section, the officer may seize and remove any material or
information relevant to a request under this Act whatsoever
found there which he reasonably believes may contain infor-
mation relevant to a request, and shall immediately deliver such
material and information so seized and removed to the Com-
missioner.

(7) Where entry to a premises has been made by virtue of a
warrant under this section and the officer making the entry has
seized any material containing information under the authority
of the warrant, he shall prepare an inventory of such material
containing the information so removed and if so requested by a
person showing himself either -

(a) to be the occupier of the premises; or

(b) to have had possession or cusody of those things
immediately before the seizure, provide that person
with a copy of that inventory.

(8) Where material and information are seized under the au-
thority of a warrant and it is shown that access to such material
and information are required for the continued conduct of the
business or affairs of any person, the Commissioner shall af-
ford to that person reasonable access to the material and infor-
mation solely for the purpose of'continuing such business or
affairs.

Provisions 8. (1) Where the Commissioner obtains material containing
supplementary to information by virtue of section 6 or 7, he shall -
power to produce
information and
enter premises to (a) unless he returns such material or information pursu-
obtain informa- ant to paragraph (c), and in any event for a period
tion. of twenty days, commencing on the day on which

he obtained the information, 'not disclose or reveal
to any person the contents or import of the material
or information.

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Information Exchange Act 2002. AND

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(b) after the expiry of the period twenty (20) days, if
the material, in his opinion, contains information
sought by a request be entitled to make copies of it
and keep them for his record and make such other
copies available to others in furtherance of the re-
quest;

(c) whether or not the material contains mformation sought
by a request, return the material as soon as practicable
to the person fiom whom he obtained it;

(d) extend the time period in the event a taxpayer or
interested person has objected to the Minister pro-
viding the assistance requested or otherwise seek-
ing judicial review of an act of the Commissioner
pursuant to the provisions of section 9.

9. Any person to whom a notice has been issued in accor- Judicial Review.
dance with section 6 or any person affected by such notice may
apply to a Judge in Chambers within fourteen (14) days or such
longer time as the Court may determine, commencing from the
date the notice is served on such person, for a review of the
Commissioner's decision to issue such notice.

10. (1) A document to be served under this Act is properly Service of
served on the person to whom it is addressed if it is served in dOcument.
the manner provided under subsections (2) or (3).

(2) The document may be served on or delivered to the per-
son personally or being sent by registered post in his name to
his last known business or private address.

(3) References in this section to the serving of a document
on a person include the giving of the document to him.

11. (1) Any person who - Offences.

(a) contravenes subsection (3) of section 6;

(b) gives false evidence or produces false books, pa-
pers, records or other tangible property pursuant to
subsection (6) of section 6 commits an offence;

(c) willfully obstructs an officer executing a warrant
under section 7 or a person lawfully accompanying

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him pursuant to subsection (5) of that section, com-
mits an offence.

(2) If any person, in or in connection with delivering infor-
mation pursuant to subsection (3) of section 6, willfully tampers
or alters any information or any part of such information so
that the information or any part of such information is false
when received by the Commissioner commits an offence.

(3) Any person who willfully alters, destroys, damages or
conceals any information requested by the Commissioner pur-
suant to section 6 commits an offence.

(4) A person who commits an offence under this section may
be proceeded against summarily, and is liable on conviction to -

a fine not exceeding $5,000, or to imprisonment for a term not
exceeding six months or to both.

Deposition, etc. 12. (1) Where a request so stipulates, the Commissioner shall
obtain the information sought by the request in the form of -

(a) deposition of witnesses; or

) original documents or copies of original documents,
being depositions so made, and documents or cop-
ies so certified or authenticated.

(2) Regulations may confer such functions on such persons
as may be specified in the regulations in order to give full ef-
fect to subsection (1).

Regulations. 13. (1) The Minister may make regulations for the better
carrying out of the purposes and functions of this Act.

(2) Without prejudice to the generality of subsection (I), the
Minister may by regulation -

(a) prescribe forms for the execution of requests made
in pursuance of this Act;

(6) prescribe anything that is required to be prescribed
under this Act.

(3) Any Regulation made under this Act is subject to affir-
mative resolution of the Legislature.

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Passed the House of Representatives Passed the Senate this 5th
this 22nd day of October, 2002. day of November, 2002.

B. Harris,
Speaker.

M. Percival,
President.

S. Walker, S. Walker,
Clerk to the House of Representatives. Clerk to the Senaie.

Printed at the Government Printing Office, Antigua and Barbuda,
by Donovan Southwell,
Read Entire Law on laws.gov.ag