lo26044002 law 12/2014, from 26 June, amending Act 3/2009, of exchange of information in tax matters with request since the General Council in its session of 26 June 2014 has approved the following: law 12/2014, from 26 June, amending Act 3/2009, of exchange of information in tax matters with request reason the implementation during these nearly five years of the law 3/2009 for the exchange of information on tax matters with request, has highlighted certain shortcomings that need to fix and complete to comply with the international obligations contracted at the time, following the commitment to international cooperation in the area of exchange of information in tax matters, and to respect the criteria and interpretation in constant evolution that in the OECD commitments of the fingers.
The main shortcoming that aims to solve with this law amendment, is to regulate the omission of the notice to the person are mentioned in the news that the requesting State is carrying out an investigation that the affects.
Reality has shown that in certain very specific cases, dealing exclusively with the urgency to get the information or to the fact that the investigation would be significantly hampered or even canceled in the event that the person knew that are mentioned are being carried out this research, it is necessary to impose the secrecy of the proceedings.
There is the same need in the case in which it is delivered to the person are mentioned certain parts of the information contained in the request of the requesting State, the knowledge of which on the part of the person are mentioned would have been able to substantially hinder the investigation that was carried out and cause damage evident in the requesting State.
The legitimate interest of the requesting State and of the public cause I had to allow in specific cases that have been mentioned before, decreed the total or partial secret of the performances, but the interest of the citizen and respect for the rights of opposition to the sending of information and resource for part of this, must also be respected in the most essential aspects.
This law, incorporates a second paragraph in article 8 which establishes the procedure by means of which it can be entrusted to the secrecy of the proceedings and the principles based on proportionality that can afford to adopt this decision, given the gravity of the offence and the public interest involved in the research and the need to adopt the measure because it does not hinder the investigation as well as the provisional character of, setting a maximum period of six months which cannot be extended or exceeded, and fixing the obligation to communicate the facts to the person are mentioned at the time so that you can exercise fully and with knowledge of the rights of opposition and appeal in relation to the information found in the administrative dossier.
Finally, and in that the obligation of confidentiality affect so evident to the holder of the information, since during the term of the investigation cannot communicate the existence of the application to the person are mentioned, establishes clearly this obligation, without prejudice to the legal actions that the finger holder can exercise, and implements the system of sanctions in the event that it fails to meet the obligation of confidentiality mentioned through the amendment of article 10.
Article 1 Amendment of article 8 of the law 3/2009, of exchange of information in tax matters with request modifies the article 8 of the law 3/2009, of exchange of information in tax matters with prior request, by adding and the numbering of a second paragraph, which is worded as follows: "Article 8 Notification Procedure and of opposition 1. Once received and positively qualified by the competent authority in Andorra, after verification of the conditions laid down in article 4, the request for Exchange of information with request in tax matters will notify the person are mentioned, in the form provided for in the code of the administration. In the trade, the request will be notified, in the same way, the person possessed of the information requested, if applicable.
In the thirteen calendar days following the notification, the person are mentioned as the owner of the information can make an appeal before the competent authority of opposition duly motivated. The competent authority gives its resolution in the thirteen days that follow the completion of the opposition.
The decision of the competent authority can be made, within thirteen days, in front of the Administrative Section of the Batllia of Andorra, which, after the procedure of hearing of the person are mentioned, of the entity possessed of the information and of the competent authority, dictates resolution in a maximum period of thirteen days, counted from the filing of the appeal court.
The Court ruling is recurrible in front of the living room of the Administrative Court of Justice, in the thirteen days after its notification.
Heard the person are mentioned, the company possessed of the information and the competent authority, the Superior Court Administrative dictates a firm and final decision within a maximum period of thirteen days, counting of the formulation of the resource.
The interposition of the resource of initial opposition and appeal court of first and second instance suspended the execution of the decision of the competent authority.
In the event that the objective is not opposed to the positive decision of the competent authority, or that the appeal brought by a firm and definitive resolution is rejected, the competent authority carries out the actions designed to fill in the request for information request.
The administrative procedure established in this article does not imply any prejudice or exclusion of implied warranties that the Andorran penal procedure establishes in the case of crime, which are kept for all purposes, and especially to preserve constitutional rights not to plead guilty and not to testify against himself.
2. In relation to the compliance with and implementation of the agreements for the exchange of information on tax matters with the request, in the event that the requesting State so requests, the competent authority can set the total or partial Andorran secret of the request for Exchange of information when you are discharged, cumulative way, the following circumstances:
a) that the State requesting in its request for information the disclosure of the information or that reasonably goes like the petition can prejudice the investigation that is being made.
b) That requesting State in his request for information indicated that the investigation is treated differently for a serious violation in accordance with the tax laws.
If these assumptions the Andorran authorities and the competent authorities of the requesting State must reach a mutual agreement on what is the information that can be disclosed to the person are mentioned or the holder of the information, and what may not be so, taking into account the severity of the infraction investigated, according to the legislation of the requesting State and the requested State , and the need not to deliver the information to protect the investigation. Exceptionally, the agreement can lead to a lack of disclosure of the existence of the information request to the person are mentioned.
In any case, the agreement should set the time when you can disclose the information to the person are mentioned or the holder of the information, which may not exceed six months after having started the delivery of the information to the requesting State.
The person who possesses the information is obliged to keep confidentiality with respect to the request for information or any information that the mutual agreement determine. This does not preclude the right of the person who possesses the information to formulate appeal of initial opposition and the appeal court of first and second instance provided for in paragraph 1. "
Article 2 amendment to article 10 of the law 3/2009, of exchange of information in tax matters with request modifies the article 10 of the law 3/2009, of exchange of information in tax matters with request, which is worded as follows: "Article 10 Infringements and sanctions Constitutes infringement to the provisions of this law the fact that any person duly required by the competent authority violates the secret set , desatengui the request received or do not provide the requested information. This violation will be sanctioned as follows: a) pecuniary Fine of 300 euros, if fails to appear or do not provide the documentation, data or information required within the period established in the first requirement notified to this effect.
b) pecuniary Fine of 1,500 euros, if fails to appear or do not provide the documentation, the data or the required information within the deadline set in the second requirement notified to this effect.
c) proportional pecuniary Fine, a maximum amount of two per cent of the turnover of the offending subject of the calendar year prior to the year in which the infringement has occurred, with a minimum of 10,000 euros and a maximum of 100,000 euros, when the secret has violated provisions, has not appeared or has not provided the documentation, data or information required within the period established in the third requirement notified to this effect. In the case of people who do not carry out economic activities, it imposes a penalty for a total of 10,000 euros. However, if before the end of the disciplinary procedure is fully complies with the requirement, the corresponding sanction is of 5,000 euros.
The offence and the sanction covered in this article prescribed three years counted from the end of the term fixed to meet the requirement or from the imposition of the sanction. "
Final provision this law shall enter into force the day after being published in the official bulletin of the Principality of Andorra.
Casa de la Vall, 26 June 2014 Vicenç Mateu Zamora Syndic General Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
François Hollande Joan Enric Vives Sicília and President of the French Republic and the Bishop of Urgell Co-prince of Andorra Co-prince of Andorra