Mutual Legal Assistance (Tax Matters) (No.4) Order, 2010

Summary

This Order, made under section 3(3) of the Mutual Legal Assistance (Tax Matters) Act 2003, applies Part 1 of that Act to specific Tax Information Exchange Agreements (TIEAs) reproduced in its Schedule, including agreements between the British Virgin Islands and the People's Republic of China and Ireland. It gives these bilateral tax information exchange agreements domestic legal effect in the BVI, establishing the framework and procedures for exchanging tax information with the treaty partners.

• Scope of exchange: Competent authorities of the BVI and the treaty partner may exchange information foreseeably relevant to the administration, assessment, collection, or enforcement of covered taxes, and to investigation or prosecution of tax matters.
• Access to information: Each party must ensure its competent authority can obtain and provide information held by banks, other financial institutions, and persons acting as agents, nominees, or fiduciaries, as well as legal and beneficial ownership information on companies, partnerships, trusts and foundations.
• Confidentiality: Information exchanged must be kept confidential, used only for the purposes stated in the agreement, and not disclosed to any other jurisdiction without consent.
• Grounds to decline: A requested party may decline a request that is not in conformity with the agreement, that has not exhausted domestic means of obtaining information, or where disclosure would breach public policy, legal privilege, or trade secrets.
• Tax examinations abroad: With prior notice and domestic law permitting, representatives of the requesting party's competent authority may interview persons or observe tax examinations in the requested party's territory.

The Order itself does not create new obligations on private businesses beyond the mechanics of the Mutual Legal Assistance (Tax Matters) Act; rather it operationalises the underlying TIEAs, meaning BVI-based entities holding relevant financial or ownership information may be compelled, via the competent authority (the Financial Secretary or delegate), to produce information in response to a valid exchange request from China or Ireland.

Key obligations

• Each Contracting Party must ensure its competent authority has the power to obtain and provide information held by banks, other financial institutions, and persons (including nominees and trustees) acting in an agency or fiduciary capacity, in response to a request under the Agreement.
• The requested party's competent authority must confirm receipt of a request in writing and notify the requesting party of any deficiencies in the request within 60 days of receipt.
• If unable to obtain and provide requested information within 90 days of receipt of a request, the requested party's competent authority must immediately inform the requesting competent authority of the reasons for the delay, obstacle, or refusal.
• Information exchanged under the Agreement must be kept confidential and used only for the purposes specified in Article 1, and not disclosed to any other jurisdiction.
• Requests for assistance and responses must be made in English.
• Representatives of a requesting party seeking to interview persons or examine records in the requested party's territory must give at least 14 working days' notice.

Applies to

banks, other financial institutions, persons acting in an agency or fiduciary capacity (including nominees and trustees), companies, partnerships, trusts, foundations

Deadlines

• 60 days of receipt of the request: Requested party's competent authority must notify the requesting party of any deficiencies in a request for information.
• 90 days of receipt of the request: Deadline by which the requested party's competent authority should obtain and provide the requested information, or explain inability, obstacles, or refusal.
• at least 14 working days' notice: Notice period required before representatives of the requesting party may enter the requested party's territory to interview persons or examine records.
• on the date of the later notification: Entry into force of the underlying Agreement, once each Contracting Party notifies completion of its domestic procedures.

Related documents

• This document is made under Mutual Legal Assistance (Tax Matters) Act, 2003 (No. 18 of 2003)