Taxation (Mutual Administrative Assistance) Act 2014

Link to law: http://www.gibraltarlaws.gov.gi/articles/2014-06o.pdf
Published: 2014-03-01

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
I ASSENT Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06


TAXATION (MUTUAL ADMINISTRATIVE
ASSISTANCE) ACT 2014

Principal Act

Act. No. 2014-06 Commencement 1.3.2014
Assent 27.2.2014




Amending
enactments
Relevant current
provisions
Commencement
date



Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
ARRANGEMENT OF SECTIONS


Section.

PART I
Preliminary

1. Title and commencement.
2. Interpretation.
3. Scope of the Act.

PART II
Competent Authority

4. Designation of the Competent Authority.
5. Duty of the Competent Authority.
6. Functions of the Competent Authority.

PART III
Exchange of Information

7. Basis for exchange of information.
8. Exchange of information upon request.
9. Automatic exchange of information.
10. Spontaneous exchange of information.
11. Power to compel the production of information.
12. Power to compel witnesses or for production of evidence under
Oath.
13. Search and Seizure.
14. Power to obtain production order.
15. Privilege.

PART IV
Tax Examinations

16. Simultaneous tax examinations.
17. Tax examinations abroad.

PART V
Information

18. Information to be provided in request for assistance.

PART VI
Response and limitation of assistance

19. Response to request for assistance.
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
20. Protection of Persons and Limitations to the Convention obligations.
21. Time Limit.
PART VII
General

22. Conflicting information.
23. Confidentiality.
24. Language.
25. Costs.
26. Proceedings.
27. Regulations.
28. Immunity.
29. Relationship with other legislation.

SCHEDULE

Particulars to be included in a notice to produce information
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
AN ACT TO IMPLEMENT THE CONVENTION ON MUTUAL
ADMINISTRATIVE ASSISTANCE IN TAX MATTERS OF 21
JANUARY 1988 AS AMENDED BY THE PROTOCOL AMENDING
THE CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE
IN TAX MATTERS OF 27 MAY 2010; AND FOR CONNECTED
PURPOSES.
PART I
Preliminary

Title and commencement.

1. This Act may be cited as the Taxation (Mutual Administrative
Assistance) Act 2014 and comes into operation on 1 March 2014.

Interpretation.

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

“applicant State” and “requested State” mean respectively any Party
applying for administrative assistance in tax matters and any Party
requested to provide such assistance;

“Competent Authority” means the authority designated under section 4;

“Commissioner of Income Tax” means the person appointed under
section 2(1) of the Income Tax Act 2010;

“Convention” means the Convention on Mutual Administrative
Assistance in Tax Matters of 21 January 1988 as amended by the
Protocol amending the Convention on Mutual Administrative
Assistance in Tax Matters of 27 May 2010;

“Council of Europe” means the Council of Europe established under the
Statute of the Council of Europe of 5 April 1949;

“Government” means the Government of Gibraltar;

“interested person” means a person who is directly affected and includes
his or its legal representative;

“Minister” means the Minister with responsibility for finance;

“national” means a Gibraltarian within the meaning of the Gibraltarian
Status Act and, in this Act, shall include any legal person,
partnership or association deriving its status as such from the laws
in force in Gibraltar;
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06

“OECD” means the Organisation for Economic Co-operation and
Development established under the Convention on the Organisation
for Economic Co-operation and Development of 14 December
1960;

“Party” or “Parties” respectively mean a State Party or State Parties to
the Convention, and where the context so admits, or requires shall
include a territory;

“person” means a legal or natural person;

“relevant information” means information which is required by the
Competent Authority for the purpose fulfilling a provision of this
Act; and

“request for assistance” includes administrative assistance and refers to
the exchange of information set out in sections 8 and 14 to 15 or
the assistance in Part IV.

(2) Where the Convention is being applied in Gibraltar then unless the
context requires otherwise, terms regarding the taxes covered by the
Convention shall be construed in accordance with the law of Gibraltar.

Scope of the Act.

3. This Act shall apply only in relation to taxes on income or profits as
defined in Article 2(1)(a)(i) of the Convention.

PART II
Competent Authority

Designation of the Competent Authority.

4. The Commissioner of Income Tax is designated as the Competent
Authority for the purposes of this Act.

Duty of the Competent Authority.

5.(1) The Competent Authority shall perform the functions assigned to it or
the duties conferred upon it under this Act or any other enactment.

(2) Without prejudice to subsection (1) the Competent Authority shall
undertake such other function or duty as the Government notifies to it in
writing.

Functions of the Competent Authority.

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
6. Without prejudice to the generality of section 5, the principal function of
the Competent Authority shall include-–

(a) exchange of information, including simultaneous tax
examinations and participation in tax examinations abroad, as
provided for under this Act, and for the purposes of compliance
with the Convention;

(b) liaising as necessary with an applicant State;

(c) acting as Competent Authority for Gibraltar in any case where
Gibraltar is the requesting State; and

(d) performing such other functions as may be prescribed under
this Act or any other enactment or law.

PART III
Exchange of information

Basis for exchange of information.

7. The basis upon which information may be exchanged under the
provisions of this Part shall be whether that information is foreseeably
relevant for the administration or enforcement of any laws, whether in
Gibraltar or in the requesting State, relating to taxes on income or profits.

Exchange of information upon request.

8.(1) The Competent Authority shall upon the request of the applicant State
provide that State with information, falling under section 7, concerning
particular persons or transactions.

(2) If the information available to the Competent Authority is insufficient
to enable it to comply with a request for information, the Competent
Authority shall have recourse to the provisions of sections 11 to 14 to obtain
the relevant information in order to provide the applicant State with the
information requested.

Automatic exchange of information.

9.(1) Where the Government agrees with one or more States to the
automatic exchange of information referred to in section 3 in respect of
particular categories of cases the Competent Authority shall automatically
exchange that information.

(2) If the information available to the Competent Authority is insufficient
to enable it to comply with subsection (1), the Competent Authority shall
have recourse to the provisions of sections 11 to 14 to obtain the relevant
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
information in order to provide the applicant State with the information
requested.

Spontaneous exchange of information.

10.(1) The Competent Authority shall, without prior request, forward to
another Party information of which it has knowledge in the following
circumstances–

(a) the Competent Authority has grounds for supposing that there
may be a loss of tax in the other Party;

(b) a person liable to tax obtains a reduction in or an exemption
from tax in Gibraltar which would give rise to an increase in
tax or to liability to tax in the other Party;

(c) business dealings between a person liable to tax in Gibraltar or
in a Party and a person liable to tax in Gibraltar or another
Party, as the case may be, are conducted through one or more
countries in such a way that a saving in tax may result in
Gibraltar, the other Party or in both Gibraltar and that other
Party;

(d) the Competent Authority has grounds for supposing that a
saving of tax may result from artificial transfers of profits
within groups of enterprises; or

(e) information forwarded to the Competent Authority by the
another Party has enabled information to be obtained which
may be relevant in assessing liability to tax in the other Party.

(2) The Minister may by regulations provide for the procedures to be
followed or such other matters as may be requested to give effect to the
provisions in subsection (1).

Power to compel the production of information.

11.(1) Where the Competent Authority believes that a person is in
possession of relevant information it shall issue and serve upon such person
a notice requiring that person to produce to the Competent Authority the
information the subject matter of the notice in the manner, at the time and in
the place specified in the notice.

(2) A notice issued under subsection (1) shall include at least the
particulars specified in the Schedule.

(3) Any person served with a notice pursuant to subsection (1) may,
within 10 days from the date of service of the notice, make a written
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
submission to the Competent Authority specifying any grounds which he
wishes the Competent Authority to consider in making a final determination
as to whether or not the request is in compliance with the provisions of this
Act, including any assertions that the information requested is subject to
legal privilege and the reasons therefor.

(4) The Competent Authority shall consider any written submission made
in accordance and compliance with subsection (3), but shall not be obliged
to permit or consider any oral submission by or on behalf of any person who
is the subject of a notice, and shall thereupon confirm, vary or withdraw the
notice as the Competent Authority considers appropriate.

(5) A person upon whom a notice is issued under subsection (1) shall
provide the information requested by the notice or any variation thereof and
comply with all of its other requirements

(i) by the date specified in the notice; or

(ii) if a written submission has been made under subsection (3),
within 10 days of the receipt of the Competent Authority’s
written decision under subsection (4).

(6) Where the information requested is of a recurring nature, the date
referred to in subregulation (5)(i) may include more than one date or a series
of dates.

Power to compel witnesses or for production of evidence under
Oath.

12.(1) This section applies in any case where, pursuant to a request, the
Competent Authority requires any person to provide evidence by way of
deposition or to produce information on oath.

(2)–

(a) In any case to which subsection (1) applies, the Minister shall
on the application of the Competent Authority appoint a
person to be a Special Examiner to conduct the examination,
take the testimony and receive the information on oath of any
person;

(b) both an application by the Competent Authority and any
appointment under this subsection shall attach a notice issued
in conformity with section 11.

(3) The Minister may designate the Stipendiary Magistrate as the Special
Examiner under subsection (2) above.

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
(4) The Special Examiner may issue subpoenas, administer and take
evidence under oath, and exercise any other power which the Supreme
Court may exercise for the purpose of compelling testimony and the
production of information.

(5) The Special Examiner appointed under subsection (2) shall, unless it
be the Stipendiary Magistrate, be a barrister or solicitor of at least 5 years
standing or a public officer of at least Higher Executive Officer grade.

(6) The testimony and information taken by the Special Examiner shall be
provided by the Special Examiner to the Competent Authority who shall
provide it to the requesting Party in accordance with this Act.

(7) For the purposes of subsection (6), testimony shall be provided to the
Competent Authority in the form of written depositions of the witness and
documents and records, if requested by the Competent Authority, in the
form of authenticated copies.

(8) The following persons shall be permitted to ask questions of a witness
before a Special Examiner, namely–

(a) the Special Examiner;

(b) the Competent Authority;

(c) any person authorised to do so by the Competent Authority;

(d) a lawyer representing the witness or the employer of the
witness; or

(e) any other person prescribed by regulations made under this
Act.

(9) A person required to testify or to produce information under this
section shall have the right to be represented by counsel when he does so.

Search and Seizure.

13.(1) This section applies to any case where the Magistrates’ Court is
satisfied on the application of the Competent Authority that–

(a) a person who has been requested to provide testimony or
information has failed to comply in whole or in part with the
provisions of section 11 or 12; or

(b) if notice is given to the person who has, or is believed to have,
the required information in his possession or control, there is a
reasonably foreseeable possibility that it might be tampered
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
with, removed from Gibraltar, destroyed, or placed beyond the
access or control of that person or the Competent Authority; or

(c) the Government’s ability to comply with a request in
accordance with its obligations under this Act so requires.

(2) In any case to which subsection (1) applies, the Competent Authority
may apply to the Magistrates’ Court which may issue a warrant in writing
authorising the Competent Authority and any person or persons authorised
by the Competent Authority to enter premises, if necessary by force, at any
time within 14 days from the time of issue of the warrant, and search them.

(3) In this section “premises” means any premises where the Competent
Authority believes relevant information is to be found, or from which it can
be accessed using electronic or other means.

(4) The persons so authorised by a warrant when entering or having
entered the premises under the authority of a warrant under this section
may–

(a) take with them such other person or persons as appears to the
Competent Authority to be necessary;

(b) seize and remove any things whatsoever found there which
they have reasonable cause to believe may constitute or contain
relevant information; and

(c) search or cause to be searched any person found on the
premises whom they have reasonable cause to believe to be in
possession of any relevant information, but no person shall be
searched except by a person of the same sex.

(5) In the case of any information stored in any electronic form which is
information that–

(a) the Competent Authority or those authorised by it when
entering or having entered the premises as mentioned in
subsection (4) above has reasonable cause to believe may
constitute or contain relevant information; and

(b) is contained in any electronic device in the premises or
accessible from the premises,

the power of seizure under subsection (4) shall include–

(i) a power to require the information to be produced in a
form in which it can be taken away and in which it is
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
visible and legible or from which it can readily be
produced in a visible and legible form; and

(ii) a power to remove the electronic equipment for
examination elsewhere by the Competent Authority or
persons authorised by the Competent Authority.

(6) The Competent Authority or persons authorised thereby seeking to
exercise the powers conferred by a warrant under this section–

(a) if the occupier of the premises concerned is present at the time
the search is to begin, shall supply a copy of the warrant
endorsed with his name to the occupier;

(b) if at that time the occupier is not present but a person who
appears to the officer to be in charge of the premises is present,
shall supply such a copy to that person; and

(c) if neither subparagraph (a) nor subparagraph (b) above applies,
shall leave such a copy in a prominent place on the premises.

(7) Where entry to premises has been made with a warrant under this
section, and the Competent Authority or persons authorised has seized any
things under the authority of the warrant, he shall endorse on or attach to the
warrant a list of the things seized.

(8) The Competent Authority or persons authorised when he removes
anything in the exercise of the power conferred by this section shall, if so
requested by a person showing himself–

(a) to be the occupier of premises from which it was removed; or

(b) to have had custody or control of it immediately before the
removal,

provide that person with a record of what he removed.

(9) The Competent Authority shall provide the record within a reasonable
time from the making of the request for it.

(10) Where anything which has been removed by the Competent
Authority or person authorised is of such a nature that a photograph or copy
of it would be sufficient for the purposes of complying with the request, it
shall not be retained longer than is necessary to establish that fact and to
obtain the photograph or copy.

(11) Subject to subsection (15) below, if a request for permission to be
granted access to anything which–
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06

(a) has been removed by the Competent Authority; and

(b) is retained by the Competent Authority for the purpose of
complying with a request,

is made to the Competent Authority by a person who had custody or control
of the thing immediately before it was so removed or by someone acting on
behalf of any such person, the Competent Authority shall allow the person
who made the request access to it under the supervision of any officer of the
Competent Authority.

(12) Subject to subsection (15) below, if a request for a photograph or
copy of any such thing is made to the Competent Authority by a person who
had custody or control of the thing immediately before it was so removed,
or by someone acting on behalf of any such person, the Competent
Authority shall–

(a) allow the person who made the request access to it under the
supervision of an officer of the Competent Authority for the
purpose of photographing or copying it; or

(b) photograph or copy it, or cause it to be photographed or copied.

(13) Where anything is photographed or copied under subsection (12)(b)
above, the photograph or copy shall be supplied to the person who made the
request.

(14) The photograph or copy shall be supplied within a reasonable time
from the making of the request.

(15) There is no duty under this section to grant access to, or to supply a
photograph or copy of, anything if the Competent Authority has reasonable
grounds for believing that to do so would prejudice its ability to comply
with the request.

(16) For the purposes of subsection (5) information is stored in an
electronic form if it is held in, maintained by, accessed through or
retrievable from any equipment or thing constituting or based on technology
having electrical, magnetic, optical, electro-magnetic or similar capabilities,
whether digital, analogue or otherwise.

Power to obtain production order.

14.(1) This section applies when the Competent Authority considers it
necessary to obtain from any person in Gibraltar information in order to
comply with a request.

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
(2) In any case to which this section applies, the Competent Authority
may apply to the Magistrates’ Court for an order to produce such
information.

(3) If on an application under subsection (2) the court is satisfied that the
conditions in subsection (7) are fulfilled, it may make an order that the
person who appears to it to be in possession or control of the information to
which the application relates shall–

(a) produce it to the Competent Authority or a person authorised
by the Competent Authority to take away; or

(b) give the Competent Authority or a person authorised by the
Competent Authority access to it,

within such period as the order may specify.

(4) The period to be specified in an order under subsection (3) shall be 14
days, unless it appears to the court that a longer or shorter period would be
appropriate in the particular circumstances of the application.

(5) The conditions referred to in subsection (3) are that the court is
satisfied that–

(a) the Competent Authority has certified the request is in
accordance with this Act;

(b) the information to which the application relates is in the
possession or under the control of a person in Gibraltar
(whether the information itself be or is not in Gibraltar);

(c) the information to which the application relates does not
include items subject to legal privilege or items subject to
protection as secret, pursuant to this Act;

(d) a notice in accordance with section 11 has been issued; and

(e) there are no reasonable grounds for not entertaining the
request.

(6) Where the court makes an order under subsection (3)(b) in relation to
information held on any premises, it may, on the application of the
Competent Authority, order any person who appears to it to be entitled to
grant entry to the premises to allow the Competent Authority or any person
or persons authorised by the Competent Authority for that purpose to enter
the premises to obtain access to the information.

(7)–
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06

(a) The Minister, following consultation with the Chief
Justice, may make rules governing the procedure in
relation to applications for the grant, discharge and
variation of orders under subsection (3); and

(b) the Chief Justice may make rules of court in relation to
proceedings relating to such orders.

(8) Where the information to which an order under subsection (3) relates
consists of information maintained as an electronic record, such information
shall be produced in a form in which it can be taken away and in which it is
visible and legible or in a form in which it is visible and legible, as the case
may be.

(9) Where, pursuant to a request concerning criminal proceedings or
investigations, an order under subsection (3) has been made or has been
applied for, and has not been refused, or a warrant under section 13 has been
issued, whoever, knowing or suspecting that a request has been made, or
that an investigation into any matter to which a request relates is taking
place, makes any disclosure which is likely to prejudice the proceedings or
the investigation to which the request may relate, is guilty of an offence and
liable on summary conviction to imprisonment for a term not exceeding one
year or to a fine not exceeding level 5 on the standard scale or both.

(10) In proceedings against a person for an offence under subsection (9), it
is a defence to prove–

(a) that he did not know or believe that the disclosure was likely to
prejudice the request or investigation; or

(b) that he had lawful authority or reasonable excuse for making
the disclosure.

(11) Any documents or other information obtained under an order by
virtue of subsection (3) shall be brought immediately to the Competent
Authority to be dealt with according to this Act.

(12) For the purposes of subsection (8) an electronic record means a
record processed and maintained by technology having electrical, magnetic,
optical, electromagnetic, or similar capabilities, whether digital, analogue or
otherwise.

Privilege.

15.(1) No person shall be obliged under this Act to provide testimony or
information which is an item subject to legal privilege.

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
(2) No person shall be obliged under this Act to provide testimony or
information which would disclose any trade, business, industrial,
commercial or professional secret or trade process.

(3) Save as aforesaid, the obligation of persons to provide testimony and
information under this Act shall have effect notwithstanding any obligation
as to confidentiality or other restriction upon the disclosure of information
contained in section 23 or any enactment or the common law or in any other
relationship.

(4) Any person who pursuant to this Act provides testimony or
information subject to any obligation as to confidentiality shall be immune
to suit from any other person arising from the provision of such information.

PART IV
Tax examinations

Simultaneous tax examinations.

16.(1) Where at least on Party proposes a simultaneous tax examination, the
Competent Authority may, with the prior approval of the Minister, agree on
the cases and procedures for the conduct of such simultaneous tax
examinations.

(2) Nothing in subsection (1) shall compel the Competent Authority to
undertake a simultaneous tax examination if the Minister does not give his
approval.

(3) In this section “simultaneous tax examination” means an arrangement
where the competent authorities of the relevant Parties and within their
respective territories, simultaneously examine the tax affairs of any person
in which they have a common or related interest, with a view to exchanging
any relevant information which they obtain.

Tax examinations abroad.

17.(1) With the prior approval of the Minister, the Competent Authority
may make arrangements to allow representatives of the Competent
Authority of the applicant State to be present at the appropriate part of a tax
examination in Gibraltar.

(2) If the request referred to in subsection (1) is acceded to, the Competent
Authority shall, as soon as possible, notify the competent authority of the
applicant State about the time and place of the examination, the authority or
official designated to carry out the examination and the procedures and
conditions required by the Competent Authority for the conduct of the
examination.

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
(3) Decisions with respect to the conduct of the tax examination referred
to in subsection (2) shall be the exclusive competence of the Competent
Authority.

PART V
Information

Information to be provided in request for assistance.

18.(1) A request by an applicant State for assistance under this Act shall
indicate where appropriate–

(a) the authority or agency which initiated the request made by the
competent authority;

(b) the name, address, or any other particulars assisting in the
identification of the person in respect of whom the request is
made;

(c) the form in which the competent authority wishes the
information to be supplied in order to meet its needs; and

(d) whether it is in conformity with the law and administrative
practice of the applicant State and whether it is justified in the
light of the requirements of section 20(2)(g).

(2) Where the Competent Authority receives a request for information that
complies with the criteria set out in Article 18(1) of the Convention, it shall
forward any other information relevant to the request for assistance as soon
as such information comes to its knowledge.

PART VI
Response and limitation of assistance

Response to request for assistance.

19.(1) If a request for assistance is complied with, the Competent Authority
shall inform the applicant State of the action taken and of the result of the
assistance as soon as possible.

(2) If a request for assistance is declined, the Competent Authority shall
inform the applicant State of that decision and the reason for it as soon as
possible.

(3) If, with respect to a request for information, the applicant State has
specified the form in which it wishes the information to be supplied and the
Competent Authority is in a position to do so, it shall supply the information
in the form requested.
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06

Protection of Persons and Limitations to the Convention obligations.

20.(1) Nothing in this Act shall affect any enactment, rule of law or other
provision, whether administrative or otherwise, which provides a defence to
or otherwise safeguards a person’s rights.

(2) Nothing in this Act shall not be construed as an obligation on the
Competent Authority to provide the assistance referred to in sections 8, 9,
10, 16 and 17 when the request–

(a) is for the Competent Authority to carry out measures that are at
variance with the laws of or administrative practice in
Gibraltar;

(b) seeks that measures are carried out which are contrary to public
policy;

(c) requires information to be supplied which is not obtainable
under the laws of or administrative practice in Gibraltar;

(d) requires information to be supplied that would disclose any
trade, business, industrial, commercial or professional secret,
or trade process, or information the disclosure of which would
be contrary to public policy;

(e) is for administrative assistance and the Competent Authority
considers the taxation in the applicant State is contrary to
generally accepted taxation principles or to the provisions of a
convention for the avoidance of double taxation, or of any
other convention which the Government has concluded with
the applicant State;

(f) is for the provision of administrative assistance for the
purpose of administering or enforcing a provision of the tax
law of the applicant State, or any requirement connected
therewith, discriminates against a Gibraltar national as
compared with a national of the applicant State in the same
circumstances; or

(g) is for administrative assistance and the applicant State has not
pursued all reasonable measures available under its laws or
administrative practice, except where recourse to such
measures would give rise to disproportionate difficulty.

(3) If information is requested by the applicant State in accordance with
this Act, the Competent Authority shall use its information gathering
measures under sections 11 to 14 to obtain the relevant information, even
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
though the Competent Authority may not need such information for its own
tax purposes.

(4) The obligation contained in subsection (3) is subject to the limitations
contained in this Act, but in no case shall such limitations, in particular,
those contained in subsections (1) and (2), be construed as permitting the
Competent Authority to decline to supply the information solely because it
has no domestic interest in such information.

(5) In no case shall the provisions of this Act, including in particular those
in subsections (1) and (2), be construed as permitting the Competent
Authority to decline to supply the information solely because the
information is held by a bank, other financial institution, nominee or person
acting in an agency or a fiduciary capacity or because it relates to ownership
interests in a person.

Time limit.

21. The Competent Authority is not required to comply with a request for
assistance which is submitted after a period of 15 years from the date of the
original instrument permitting enforcement.

PART VII
General

Conflicting information.

22. If the Competent Authority receives, from another Party, information
about a person’s tax affairs which appears to it to conflict with information
in its possession, it shall inform the Party which has provided the
information.

Confidentiality.

23.(1) Section 3 (Confidentiality) of the Income Tax 2010 shall apply with
such modifications as circumstances may require, to information obtained
by the Competent Authority under this Act or which it receives from a
Party.

(2) Where the Competent Authority receives information from a party
which is outside the scope of section 3, the Competent Authority shall not
use that information.

(3) Notwithstanding subsections (1) and (2)–

(a) information received by the Competent Authority may be used
when such information may be used under the laws of the
Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
supplying Party and the competent authority of that Party
authorises such use; and

(b) information provided by a Party to the Competent Authority
may be transmitted to a third Party, subject to prior
authorisation by the competent authority of the first-mentioned
Party.

Language.

24. Any requests for assistance made to the Competent Authority and any
answers provided shall–

(a) be in the English language; or

(b) in any of the official languages of the OECD or the Council of
Europe if the Competent Authority has previously agreed this
with the requesting Party.

Costs.

25. Unless the Competent Authority has, with the Minister’s prior consent,
agreed with a Party–

(a) ordinary costs incurred in providing assistance shall be borne
by the Competent Authority; and

(b) extraordinary costs incurred in providing assistance shall be
borne by the applicant State.

Proceedings.

26.(1) Proceedings relating to measures taken under the Convention by the
requested State shall only be brought before the appropriate body of the
State and, where Gibraltar is the recipient of such a request, proceedings
shall be brought before the Supreme Court.

(2) Proceedings relating to measures taken by the Competent Authority
where it has made a request for administrative assistance to a Party, in
particular where the proceedings relate to the recovery of tax, the existence
or the amount of the tax claim; or the instrument permitting its enforcement,
shall be brought before the Supreme Court.

(3) If the proceedings referred to in subsection (2) are instituted, the
Competent Authority shall inform the requested State of such proceedings.

Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06
(4) Where the Competent Authority is the recipient of a request for
administrative assistance from the applicant State and it receives
information from–

(a) the applicant State; or

(b) or an interested person,

that proceedings relating to measures taken by the applicant State are the
subject of proceedings before the relevant bodies in that State, the
Competent Authority shall suspend the procedure for the provision of
administrative assistance pending the decision of the body in question and if
necessary, it shall consult with the applicant State.

(5) As soon as a final decision in the proceedings has been given, the
Competent Authority shall notify the requested State of the decision and the
implications which it has for the request of assistance.

(6) This section shall not apply to applications under sections 13 and 14.

Regulations.

27. The Government may by Regulations make provision for–

(a) the administration or implementation of this Act;

(b) compliance with any OECD, Council of Europe, European
Union or other International obligations.

Immunity.

28. The Government and the competent authority shall not be liable in
damages for anything done or omitted in the discharge of their functions
under this Act unless it is shown that the act or omission was in bad faith.

Relationship with other legislation.

29. Nothing in this Act shall affect the provision of assistance under any
other enactment.


Taxation (Mutual Administrative Assistance)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-06

SCHEDULE

Section 11(2)

Particulars to be included in a notice to produce information

1. The identity of the requesting Party.

2. The tax matter to which the request relates.

3. The person or persons subject to such taxes or taxation matters.

4. A statement that in the opinion of the Competent Authority the
request conforms with the provisions of this Act.

5. Details, sufficient to enable the person served with the notice to
identify the information requested by the notice.

6. The reason for believing that the information requested is in the
possession or control of the person served with the notice or is
obtainable by that person.

7. The form and manner in which the information must be provided.

8. Details of the time, date and place where such information must be
delivered.

9. Details of any copies of the relevant information that must be
provided and the manner in which it must be verified or
authenticated.

10. Details of any access required by the Competent Authority to the
original of any record or document, or to any electronic data storing
device, such as to enable the Competent Authority to verify the
authenticity of any document or record provided or the accuracy or
completeness of any information provided.