International Co-Operation (Tax Information) Act 2009 (United Kingdom) Notice 2010


Published: 2010-01-28

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I ASSENT International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2010/034
Subsidiary Legislation made under s. 3(6).


INTERNATIONAL CO-OPERATION (TAX
INFORMATION) ACT 2009 (UNITED KINGDOM)
NOTICE 2010

(LN. 2010/034)
Commencement 28.1.2010


Amending
enactments
Relevant current
provisions
Commencement
date

LN. 2013/185 Articles. 5A & 5B 12.12.2013


EU Legislation/International Agreements involved:

______________________


In accordance with the provisions of section 3(6) of the International Co-
operation (Tax Information) Act 2009 I have issued the following Notice.

Title.

1. This Notice may be cited as the International Co-operation (Tax
Information) Act 2009 (United Kingdom) Notice 2010.

Text of Agreement.

2. Pursuant to section 3(6) of the International Co-operation (Tax
Information) Act 2009 the text of an agreement entered into between the
Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of Gibraltar is hereby reproduced
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2010/034 AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
AND THE GOVERNMENT OF GIBRALTAR FOR THE
EXCHANGE OF INFORMATION RELATING TO TAXES

Whereas–

the United Kingdom and Gibraltar (“the Parties”) wish to enter into an
Agreement that respects the constitutional relationship between the Parties;

the Parties recognise that present legislation already provides for cooperation
and the exchange of information in criminal tax matters;

the Parties have long been active in international efforts in the fight against
financial and other crimes, including the targeting of terrorist financing;

Gibraltar entered into a formal written commitment to the OECD’s principles
of transparency and exchange of information on 27 th February 2002;

the Parties wish to enhance and facilitate the terms and conditions governing
the exchange of information relating to taxes;

Now, therefore, the Parties have agreed to conclude the arrangements
contained in the following Agreement, which contains obligations on the part
of the Parties only.


ARTICLE 1
OBJECT AND SCOPE OF AGREEMENT

The competent authorities of the Parties shall provide assistance through
exchange of information that is foreseeably relevant to the administration or
enforcement of the domestic laws of the Parties concerning the taxes and the
tax matters covered by this Agreement, including information that is
foreseeably relevant to the determination, assessment, enforcement or
collection of tax claims with respect to persons subject to such taxes, or the
investigation or prosecution of tax matters in relation to such persons. The
rights and safeguards secured to persons by the laws or administrative
practice of the requested Party remain applicable. However, the requested
Party shall use its best endeavours to ensure that the effective exchange of
information is not thereby unduly prevented or delayed. Information shall be
exchanged in accordance with the provisions of this Agreement and shall be
treated as confidential in the manner provided in Article 8.

ARTICLE 2
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
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2010/034 JURISDICTION

A requested Party is not obliged to provide information in accordance with
this Agreement which is neither held by its authorities nor in the possession
or control of persons who are within its territorial jurisdiction.

ARTICLE 3
TAXES COVERED

1. The existing taxes which are the subject of this Agreement are taxes of
every kind and description imposed in the Parties.

2. This Agreement shall also apply to any identical or substantially similar
taxes imposed by either Party after the date of signature of this Agreement in
addition to, or in place of, any of the taxes listed in paragraph 1 of this
Article. The competent authorities of the Parties shall notify each other of
any relevant changes to the taxation and related information gathering
measures covered by this Agreement.


ARTICLE 4
DEFINITIONS

1. In this Agreement unless the context otherwise requires

(a) “United Kingdom” means Great Britain and Northern Ireland,
including any area outside the territorial sea of the United
Kingdom designated under its laws concerning the Continental
Shelf and in accordance with international law as an area within
which the rights of the United Kingdom with respect to the
seabed and sub-soil and their natural resources may be
exercised;

(b) “Gibraltar” means the territory of Gibraltar

(c) “collective investment scheme” means any pooled investment
vehicle irrespective of legal form;

(d) “company” means any body corporate or any entity that is
treated as a body corporate for tax purposes;

(e) “competent authority” means

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2010/034 (i) in the case of the United Kingdom, the Commissioners
for Her Majesty’s Revenue and Customs or their
authorised representative;

(ii) in the case of Gibraltar, the Chief Secretary of the
Gibraltar Government or such other person as the
Minister of Finance may appoint;

(f) “criminal laws” means all criminal laws designated as such
under domestic law irrespective of whether contained in the tax
laws, the criminal code or other laws;

(g) “criminal tax matters” means tax matters involving intentional
conduct which is liable to prosecution under the criminal laws
of the requesting Party;

(h) “information” means any fact, statement, document or record in
whatever form;

(i) “information gathering measures” means laws, regulations and
administrative or judicial procedures that enable a Party to
obtain and provide the requested information;

(j) “person” includes an individual, a company, or any other body
or group of persons;

(k) “public collective investment scheme” means any collective
scheme or fund, in which the purchase, sale or redemption of
shares or other interests is not implicitly or explicitly restricted
to a limited group of investors;

(l) “requested Party” means the Party to this Agreement which is
requested to provide or has provided information in response to
a request;

(m) “requesting Party” means the Party to this Agreement
submitting a request for or having received information from
the requested Party;

(n) “tax” means any tax covered by this Agreement;

(o) “Party” means the United Kingdom or Gibraltar as the context
requires.

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2010/034 2. As regards the application of this Agreement at any time by a Party, any
term not defined therein shall, unless the context otherwise requires, have the
meaning that it has at that time under the law of that Party, any meaning
under the applicable tax laws of that Party prevailing over a meaning given to
the term under other laws of that Party.

ARTICLE 5
EXCHANGE OF INFORMATION UPON REQUEST

1. The competent authority of a requested Party shall provide upon request
in writing by the requesting Party information for the purposes referred to in
Article 1. Such information shall be exchanged without regard to whether
the conduct being investigated would constitute a crime under the laws of
the requested Party if it occurred in the territory of the requested Party. If
the information received by the competent authority of the requested Party is
not sufficient to enable it to comply with the request for information, it shall
advise the competent authority of the requesting Party of that fact and
request such additional information as may be required to enable the effective
processing of the request.

2. If the information in possession of the competent authority of the
requested Party is not sufficient to enable it to comply with the request for
the information, the requested Party shall use all relevant information
gathering measures to provide the requesting Party with the information
requested, notwithstanding that the requested Party may not need such
information for its own tax purposes.

3. If specifically requested by the competent authority of the requesting
Party, the competent authority of the requested Party shall provide
information under this Article, to the extent allowable under its domestic
laws, in the form of depositions of witnesses and authenticated copies of
original records.

4. Each Party shall ensure that its competent authority, for the purposes of
this Agreement, has the authority to obtain and provide upon request:

(a) information held by banks, other financial institutions, and any
person, including nominees and trustees, acting in an agency or
fiduciary capacity;

(b) information regarding the ownership of companies,
partnerships, collective investment schemes, trusts, foundations
and other persons, including:

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2010/034 (i) within the constraints of Article 2, ownership information
on all such persons in an ownership chain; and

(ii) in the case of collective investment schemes, information
on shares, units and other interests; and

(iii) in the case of trusts, information on settlors, trustees and
beneficiaries; and

(iv) in the case of foundations, information on founders,
members of the foundation council and beneficiaries, and
equivalent information in the case of entities that are
neither trusts nor foundations.

5. Notwithstanding the preceding paragraphs, this Agreement does not
create an obligation on the Parties to obtain or provide ownership
information with respect to publicly traded companies or public collective
investment funds or schemes, unless such information can be obtained
without giving rise to disproportionate difficulties.

6. The competent authority of the requesting Party shall provide the
following information to the competent authority of the requested Party
when making a request for information under this Agreement in order to
demonstrate the foreseeable relevance of the information to the request:

(a) the identity of the person under examination or investigation;

(b) the period for which the information is requested;

(c) the nature and type of the information requested and the form in
which the requesting Party would prefer to receive it;

(d) the tax purposes for which the information is sought and the
reasons why the information requested is foreseeably relevant to
the administration or enforcement of the domestic laws of the
requesting Party;

(e) the grounds for believing that the information requested is
present in the territory of the requested Party or is in the
possession or control of a person within the jurisdiction of the
requested Party;

(f) to the extent known, the name and address of any person
believed to be in possession or control of the information
requested;
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
Subsidiary
2010/034
(g) a statement that the request is in conformity with this
Agreement and the laws and administrative practices of the
requesting Party, and that if the requested information were
within the jurisdiction of the requesting Party then the
competent authority of the requesting Party would be able to
obtain the information under the laws of the requesting Party or
in the normal course of administrative practice;

(h) a statement that the requesting Party has pursued all means
available in its own territory to obtain the information, except
those that would give rise to disproportionate difficulties.

7. The competent authority of the requested Party shall acknowledge receipt
of the request to the competent authority of the requesting Party, shall advise
if there are any unexpected delays in obtaining the requested information,
and shall use its best endeavours to forward the requested information to the
requesting Party with the least possible delay.

ARTICLE 5A
AUTOMATIC EXCHANGE OF INFORMATION

1. The competent authorities of the Parties may automatically transmit
information to each other for the purposes referred to in Paragraph 1 (Object
and Scope of Agreement). The Parties shall determine the items of
information to be exchanged pursuant to this Article and the procedures to
be used to exchange such items of information.

2. The competent authorities of the Parties may mutually agree on additional
procedures to be used for the purposes of this Article.

ARTICLE 5B
SPONTANEOUS EXCHANGE OF INFORMATION
1. The competent authority of a Party may spontaneously transmit to the
competent authority of the other Party information that has come to the
attention of the first-mentioned competent authority and that the first-
mentioned competent authority supposes to be foreseeably relevant to the
accomplishment of the purposes referred to in Paragraph 1 (Object and
Scope of Agreement). The competent authorities of the Parties shall
determine the procedures to be used to exchange such information.

ARTICLE 6
TAX EXAMINATIONS (OR INVESTIGATIONS) ABROAD

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
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2010/034 1. The requested Party may, to the extent permitted under its domestic laws,
and following reasonable notice from the requesting Party, allow
representatives of the competent authority of the requesting Party to enter
the territory of the requested Party in connection with a request to interview
persons and examine records with the prior written consent of the persons
concerned. The competent authority of the requesting Party shall notify the
competent authority of the requested Party of the time and place of the
meeting with the persons concerned.

2. At the request of the competent authority of the requesting Party, the
competent authority of the requested Party may allow representatives of the
competent authority of the requesting Party to be present at the appropriate
part of a tax examination undertaken by an authority in the requested Party.

3. If the request referred to in paragraph 2 of this Article is granted, the
competent authority of the requested Party conducting the examination shall,
as soon as possible, notify the competent authority of the requesting Party of
the time and place of the examination, the authority or person authorised to
carry out the examination and the procedures and conditions required by the
requested Party for the conduct of the examination. All decisions regarding
the conduct of the examination shall be made by the requested Party
conducting the examination in accordance with its domestic laws.


ARTICLE 7
POSSIBILITY OF DECLINING A REQUEST

1. The competent authority of the requested Party may decline to assist:

(a) where the request is not made in conformity with this
Agreement; or

(b) where the requesting Party has not pursued all means available
in its own territory to obtain the information, except where
recourse to such means would give rise to disproportionate
difficulties; or

(c) where the disclosure of the information requested would be
contrary to the public policy of the requested Party.

2. The provisions of this Agreement shall not impose upon a Party any
obligation to provide information which would disclose any trade, business,
industrial, commercial or professional secret or trade process. Information
described in sub-paragraph 4 of Article 5 shall not by reason of that fact
alone constitute such a secret or process.
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
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2010/034
3. (a) The provisions of this Agreement shall not impose on
a Party the obligation to obtain or provide information which would
reveal confidential communications between a client and an attorney,
solicitor or barrister where such communications are:

(i) produced for the purposes of seeking or providing legal
advice; or

(ii) produced for the purposes of use in existing or
contemplated legal proceedings.
(b) Information held with the intention of furthering an offence is not
subject to legal privilege, and nothing in this Article shall prevent an attorney,
solicitor or barrister from providing the name and address of a client where doing
so would not constitute a breach of legal privilege.

4. A request for information shall not be refused on the ground that the tax
liability giving rise to the request is disputed by the taxpayer.

5. The requested Party may decline a request for information if the
information is requested by the requesting Party to administer or enforce a
provision of the tax law of the requesting Party, or any requirement
connected therewith, which discriminates against a resident or citizen of the
requested Party as compared with a resident or citizen of the requesting
Party in the same circumstances.

ARTICLE 8
CONFIDENTIALITY

1. All information provided and received by the competent authorities of the
Parties shall be kept confidential and shall be disclosed only to persons or
authorities (including courts and administrative bodies) concerned with the
purposes specified in Article 1. The information shall be used by such
persons or authorities only for those purposes, including the determination of
any appeal, or the oversight of the above. For these purposes, information
may be disclosed in public court proceedings or in judicial proceedings.

2. The information may not be disclosed to any other person or entity or
authority without the express written consent of the competent authority of
the requested Party.

3. Information provided to a requesting Party shall not be disclosed to any
other jurisdiction.

ARTICLE 9
International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
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2010/034 IMPLEMENTING LEGISLATION

The Parties shall enact any legislation necessary to give effect to the terms of
this Agreement.

ARTICLE 10
ADMINISTRATIVE COSTS

Incidence of costs incurred in providing assistance (including reasonable
costs of third parties and external advisors in connection with litigation or
otherwise) shall be decided by the competent authorities in a Memorandum
of Understanding.






ARTICLE 11
MUTUAL AGREEMENT PROCEDURE

1. Where difficulties or doubts arise between the Parties regarding the
implementation or interpretation of this Agreement, the competent
authorities shall use their best efforts to resolve the matter by mutual
agreement.

2. In addition to the efforts referred to in paragraph 1 of this Article, the
competent authorities of the Parties may mutually determine the procedures
to be used under Articles 5 and 6.

3. The competent authorities of the Parties may communicate with each
other directly for the purposes of reaching agreement under this Article.

4. The Parties may jointly decide on other forms of dispute resolution should
this become necessary.

ARTICLE 12
ENTRY INTO FORCE

Each of the Parties shall notify to the other the completion of the procedures
required by its law for the bringing into force of this Agreement. The
Agreement will enter into force on the date of the later of these notifications
and its provisions shall have effect:

International Co-Operation (Tax Information) INTERNATIONAL CO-OPERATION (TAX INFORMATION) ACT
2009 (UNITED KINGDOM) NOTICE 2010

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2009-50
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2010/034 (a) with respect to criminal tax matters on the date of entry into
force of this Agreement; and

(b) with respect to all other matters covered in Article 1 for taxable
periods beginning on or after the date of entry into force or,
where there is no taxable period, all charges to tax arising on or
after that date.

ARTICLE 13
TERMINATION

1. This Agreement shall remain in force until terminated by either Party.

2. Either Party may terminate this Agreement by giving notice of termination
in writing. Such terminations shall become effective on the first day of the
month following the expiration of a period of three months after the date of
receipt of notice of termination by the other Party.

3. If the Agreement is terminated the Parties shall remain bound by the
provisions of Article 8 with respect to any information obtained under this
Agreement.

Signed by exchange of letters on 27 August 2009.

FOR THE UNITED KINGDOM OF GREAT FOR GIBRALTAR: BRITAIN AND NORTHERN IRELAND:

Paul Myners Peter R Caruana
Financial Services Secretary to the Treasury Chief Minister

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