Law 3/2009, of exchange of information in tax matters with request since the General Council in its session of September 7, 2009 has approved the following: law 3/2009, of September 7, for the exchange of information on tax matters with request preamble the evolution of the international financial and economic crisis and the G20 meeting on 2 April 2009 in London have pointed out a clear will of the international community aimed at making progress on the transparency of financial activity. This will involve a relation to pressure on countries that do not have rules and procedures aimed to make it possible and to facilitate the exchange of tax information and tax with request.
In this scenario, the international General Council assumes, with the approval of this law, the "Declaration of the Principality of Andorra", that the then head of Government Albert Pintat Santolària signed in Paris on 10 March 2009. Statement that it was a firm commitment to quickly establish agreements of exchange of information in tax matters that allow the Exchange, with request of the authorities of the States concerned, by complying with the principles of the OECD model agreement on Exchange of information.
The claim of the Principality of Andorra on 10 March 2009, which allowed the OECD official record left, the month of April, 2009, that Andorra had committed to developing its legal framework, said thus: "... the Principality of Andorra is aware that its legislation should be previously reformed with the aim of lifting the bank secrecy in cases of exchange of information within the framework of bilateral agreements for the exchange of tax information agreed with his interlocutors.
Are you willing to take this road and pass by the Government a Bill in this regard before the first of September 2009, for an adoption by the Parliament of Andorra, the later on the 15th of November 2009. The Principality of Andorra will propose then to his interlocutors, and in first place in France, the signature on that same date for a bilateral agreement for the exchange of tax information.
The Principality of Andorra proposes, on the other hand, in France to negotiate as quickly as possible and conclude, when the conditions are discharged, a tax agreement to eliminate double taxation. This agreement replaced, when the time comes, the information exchange agreement concluded in accordance with the above mentioned modalities. ".
The evolution of the work of the OECD and of the whole of the international community in the period April-July 2009 and the preparation of the new G20 meeting to be held in the United States of America on September 24, 2009, advise move quickly in the fulfilment of the commitments set out in Paris on March 10, 2009.
With this aim the General Council approves the present Law aimed at a partial modification of the regulation that protects the confidentiality and, in consequence, the bank secrecy.
The law establishes a new modulation of bank secrecy which, as already has declared the Constitutional Court in its Sentence of 13 July 2001, "... it is not far from all in Andorra, not only can be lifted by the article 145 of the criminal code.".
It should be recalled that the law 11/2005 of 13 June, on the application of the agreement between the Principality of Andorra and the European Community concerning the establishment of measures equivalent to those provided for in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments, already has established some forms of exchange of information, with the possibility to opt for retention measures on yield , as an alternative to these forms of exchange of information.
At the same time, the law 28/2008, of 11 December, on the modification of the law of international criminal cooperation and the fight against the laundering of money or securities of international crime, of 29 December 2000, already introduced into Andorran legislation-by means of the final provisions first and second – the recognition of the exchange of information in tax matters.
On the other hand the law clearly establishes an exemption from liability, judicial and out-of-court settlements, the leaders and officers of the Bank and financial entities that send information from their customers with prior request of the Andorran financial authority in the framework of the agreements for the exchange of information.
Actually this law is gathering and providing several provisions that already existed in the Andorran legal system.
Such was the case of the exemption of any kind of legal liability that has already appeared in article 4 of the law of the disciplinary regime of the financial system, after the modification required by law 14/2003 of 23 October.
And we must also bear in mind, as a legislative background, the initial wording of article 50 of the law of international criminal cooperation and the fight against the laundering of money or securities of international crime, which exonerava the compulsory subjects and his staff of any responsibility, of all kinds, because of violation of the rules of secrecy and confidentiality of both general and contractual character.
With this law it is now to adopt the principles for the exchange of information in tax matters contained in the fiscal agreement model by the OECD. The law includes consensual as the provisions of article 26 of the Convention model, in your text of 17 July 2008.
This article establishes the modalities for exchanges of information between the Contracting States, with strict rules of confidentiality and secrecy.
Implies that, prior to their application, the State that do not have done yet to modify its legislation or administrative practices which represent an obstacle to the correct application of the principles established.
The law also has in mind the jurisprudence of the European Court of human rights, which has repeatedly spoken about the invalidity of evidence obtained in tax administrative proceedings if they are used in order to pursue legal means the taxpayer required.
This is the meaning of several provisions of the law. As well, the section d) of the article 5 establishes a limitation to the exchange of information that is wanted to get through the request for information that the requesting State could not get under their own legislation on the basis of the application of their tax laws.
In the same way the last paragraph of the article 8 indicates clearly that the established procedure, that is administrative, does not imply any prejudice or exclusion of warranties of Andorran criminal procedure, which are maintained for all purposes.
Formally this law is structured in ten articles, a repealing provision and three final provisions.
This is a text that includes in its articulated the evolution of international standards in the field of international cooperation on the transparency of financial activity and cooperation in the field of the fight against tax evasion.
The purpose of the law is that Andorra can be in a situation, on September 24, 2009, to submit to the OECD and the international community a clear and concrete developments in the assumption of his commitment to make possible a cooperation on the exchange of tax information with the request, as well as the Government, before this date, be in a situation to sign on behalf of Andorra agreements of exchange of information in tax matters with request with a minimum of 12 jurisdictions, provided that the terms permit trading, as a first step for the signature of the corresponding agreements to eliminate double taxation and get out of the dark and of the OECD list of tax havens lists of our neighbors.
This law confirms so, as it is said in the last paragraph of the statement of March 10, 2009, that "the Principality of Andorra wishes to continue with the OECD and Member States, a relationship based on respect and mutual trust, which will enable a progressive adaptation of its legislation to the most demanding international standards.".
Article 1 purpose and scope of application this law regulates the General principles of application in the framework of the exchange of information in tax matters with request between the Principality of Andorra and the States with which it concludes whether an agreement of exchange of information, to the administrative level, in tax matters, or an agreement to eliminate double taxation, with terms of exchange of information. The law follows the principles of transparency and exchange of information developed by the Organization of Economic Cooperation and development (OECD) and, in particular, the provisions of article 26 of the OECD Model Convention relating to the taxation of income and capital, in his text of 17 July 2008.
Article 2 Taxes object of the exchange of information with request the exchange of information in tax matters with request applies to taxation defined in each respective agreement of exchange of information or an agreement to eliminate double taxation, always following the conditions prescribed in the model of the agreement drafted by the Organization of Economic Cooperation and development (OECD), in your text of 17 July 2008.
Article 3 Definitions for the purposes of this law and of the agreements for the exchange of information in tax matters, as well as agreements to eliminate double taxation which will be awarded in implementation of the same: a) the term competent authority means in the case of the Principality of Andorra, the Ministry in charge of finance, and in the case of the third State concerned, the competent authority established by this.
b) the term person means a physical person or a legal person or any group of these people.
c) the term designates information any fact, statement, document or file, whatever its form.
Article 4 request for Exchange of information in tax matters with request 1. The request for Exchange of information in tax matters with a request made by a party is the most detailed and precise as possible, in writing, at least: a) The identity of the person the subject of the request.
b) the period subject to the request.
c) the nature of the information requested.
d) the purpose for which, in application of the tax laws of the requesting Party, will ask for the information.
e) the motives and elements that allow us to think that the information requested may foreseeably be of interest for the Administration and the application of the provisions of the requesting State tax, in relation to the person mentioned in section a).
f) motives and elements that allow us to think that the requested information is in the scope of the competent authority or in his possession or that may be obtained by a person who is under his jurisdiction.
g) to the extent that they are known, the name and address of the person from which they may think they have in their possession or available to them the information requested.
h) a statement certifying that the request is in accordance with the legislative and regulatory provisions as well as in the administrative practices of the requesting State.
and) a statement certifying that the requesting State has used in order to obtain the information requested, all means available in its own territory, saved those that may lead to disproportionate difficulties.
2. The competent authority receiving the State lawsuit accuses Summoner and carries out all actions necessary to transmit the information requested in the shorter maturities.
3. In the event that the information requested by the requesting State is not directly available to the competent authority of the requested State, this takes all appropriate measures to search for the information in order to respond to the administrative demand, even in the case that the State requested does not need this information in the context of their own tax legislation.
4. In the event that the required State is the Principality of Andorra, this stops the authority to obtain and transmit, in response to a request, the information in the financial and banking institutions that have their head office, or a legally authorized, in its territory. The sending of this information within the framework of the procedures regulated by this law, does not imply or constitute a breach of professional secrecy nor violates the restrictions on disclosure of information and, consequently, does not carry responsibility of any kind, nor general in nature or of a contractual nature. This right includes also the request for information to government agencies or public records.
Article 5 the possibility to refuse a request for information with request to the provisions of article 4 cannot be interpreted in the sense of imposing on the State the obligation to Andorran: administrative measures) in the deroguin their legislation and administrative practice.
b) communicate information that could not be obtained on the basis of its legislation or administrative practice within the framework of normal.
c) communicate information that desvetllaria a secret commercial, industrial, professional or commercial proceedings, as well as information the communication of which would be contrary to public order.
d) obtain or provide information that the requesting State could not get under their own legislation, for the purposes of the administration or application of their tax laws, or in response to a valid request made in similar circumstances by the Andorran State.
The possibility to refuse a request for information with request cannot be based solely on the lack of interest of the Andorran State, within the framework of their own tax legislation.
Article 6 Confidentiality the information forwarded to the requesting State in application of this law remains confidential, in the same way that the information obtained in application of the internal law of that State, and can only be communicated to the persons and authorities, including courts and administrative bodies, competent in the determination or the payment of taxes as defined in the agreement for the exchange of information or in the corresponding agreement to eliminate double taxation respect of the procedures relating to these taxes or to the claims or the resolutions of resources relating to the same.
Such persons or authorities may only use the information for the purpose specified. However, they can reveal this information in the course of court proceedings or in judicial decisions public.
Article 7 the State Fees to the State required expenses satisfying Summoner direct that would provide the information the object of the request.
The definition of direct expenditure exclude the expenses of ordinary administration as well as the general expenses arising from the examination and treatment of the request for information request made by the requesting State.
Article 8 Notification Procedure and opposition once and qualified for 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.
Article 9 conflict resolution procedure the agreements of exchange of information in tax matters or the agreements to eliminate double taxation in terms of exchange of information, to sign the Principality of Andorra with United States third party, must provide a procedure for the resolution of conflicts regarding the interpretation and/or application of these agreements or conventions.
Article 10 Infringements and sanctions Constitutes infringement to the provisions of this law the fact that any person duly required by the competent authority 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 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.
Repealing provision abolishes the legal provisions of equal or lower rank in that they are affected by this law, and in particular, the following: a) The third additional provision (Exchange of information on tax matters) of the law on the bases of tax Ordinance of 19 December 1996, introduced by the first final provision of law 28/2008, of 11 December from modification of the law of international criminal cooperation and the fight against the laundering of money or securities of international crime, of 29 December 2000.
b) The fifth transitional provision of the law on the bases of tax Ordinance of 19 December 1996, introduced by the second final provision of law 28/2008, of 11 December, on the modification of the law of international criminal cooperation and the fight against the laundering of money or securities of international crime, of 29 December 2000.
c) any provision contrary to the provisions of this law concerning the information that have financial and banking entities with head office in the territory of Andorra, which appears in the criminal code and the law of international criminal cooperation and the fight against the laundering of money or securities of international crime, of 29 December 2000.
First final provision this law does not modify the system of exchange of information that regulates the law 11/2005 of 13 June, on the application of the agreement between the Principality of Andorra and the European Community concerning the establishment of measures equivalent to those provided for in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments.
Requests for Exchange of information in tax matters made by the States members of the European Community that are part of an agreement or agreement in the terms established in article 1, shall be governed by the provisions of the relevant Agreement or agreement and the law.
Second final provision this law is applicable to the information requests taken on the merits of the agreements of exchange of information or of agreements to eliminate the double taxation that is from after their entry into force and that refer to fiscal exercises that begin subsequent to the date of signature of these instruments or to tax obligations generated from the same date.
Third final provision this law shall enter into force the day after its publication in the official bulletin of the Principality of Andorra.
Casa de la Vall, September 7, 2009 Josep Dallerès Codina, General Syndic Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
Nicolas Sarkozy Joan Enric Vives Sicília and President of the French Republic and the Bishop of Urgell Co-prince of Andorra Co-prince of Andorra