В статье рассматриваются вопросы, связанные с международным обменом налоговой информацией. В частности, детально освещаются международные правовые механизмы и инструменты, регулирующие отношения по поводу обмена налоговой информацией, в том числе автоматизированного обмена. Авторы приходят к заключению о значительном прогрессе в этой области международных отношений в последнее время.
In recent years international exchange of information for tax purposes has become an important issue considered by major players on the international tax policy arena.
The ubiquitous globalization of almost all the processes in the world literally erased boundaries for business, which became mobile and so possesses plenty of tools for tax planning, sometimes aggressive, as well as tax evasion and tax fraud. On the other hand, tax and controlling bodies remain locally attached and, thus, limited in their powers. Therefore, international exchange of information becomes a crucial issue to ensure tax compliance of business, as well as protection of each of the interested jurisdictions’ rights to tax earnings.
To ensure that information exchange is actually a workable solution for attaining the above targets, it should become a mechanism mutually agreed upon and applied by as many jurisdictions as possible. At the same time, such information exchange mechanism requires constant review, improvement and tailoring to current needs, so that it can allow for the due recovery of taxes.
The main engine for the development of international exchange of information for tax purposes is the globalization of business.
The first working tools for information exchange have been introduced in the Model Conventions and Commentaries issued by the Organization for Economic Cooperation and Development (OECD). Locally oriented organizations, such as Nordic Countries and the North American Free Trade Zone, have also contributed to the development of the information exchange canvas.
Among such territorially aimed developments, we should certainly note the contribution made by the European Union (EU), which introduced exchange of information in its Directives.
However, one the most remarkable contributors to the development of tax information exchange is the Global Forum on Transparency and Exchange of Information for Tax Purposes (the Global Forum), which was formed in 2000 by both OECD and non-OECD members.
In order to illustrate the constant progress of international cooperation in the field of information exchange on tax matters, we should refer to the main available sources of rules allowing various jurisdictions to implement information exchange mechanisms.
Currently, there is a wide range of tools and mechanisms for international exchange of information on tax matters. The main tax information exchange tools are reflected in:
— The OECD’s Model Agreement on Exchange of Information on Tax Matters (the OECD Model TIEA) and
— Article 26 of the OECD Model Tax Convention on Income and on Capital (the OECD Model Tax Convention).
The following can also be mentioned among other important legal sources:
— OECD Convention on Mutual Administrative Assistance in Tax Matters,
— Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information (Based on Article 6),
— EU Directives,
— FATCA and FATCA-type tools.
Let’s have a more detailed look at the currently available tax information exchange tools.
Until recently the OECD Model TIEA had been the most important achievement of the Global Forum. The Model TIEA was developed by OECD Global Forum Working Group on Effective Exchange of Information and was released in April 2002. The OECD Model TIEA’s main goal is to promote global cooperation in tax matters via exchange of information.
The OECD Model TIEA is represented in two models: one for bilateral contractual instruments and the other one for multilateral tools. The Tax Information Exchange Agreement (the TIEA) based on the OECD Model TIEA is actually the first instrument introducing global standards with regard to exchange of information in tax matters.
To date 61 countries, including 22 European countries and 24 offshore jurisdictions (of 36), have signed the TIEAs.
Among the different available information exchange tools for tax matters, a separate and distinctive place is taken by such OECD standard as the model double tax treaty, the Model Tax Convention on Income and Capital (the Model Tax Convention) along with the Commentaries thereto. Article 26 of the Model Tax Convention is the international standard for mutual exchange of information between tax authorities of contracting states, specifically as Austria, Belgium, Luxembourg and Switzerland, have withdrawn their previous reservations to Article 26 in 2009 and, therefore, have agreed to this standard on exchange of information.
Another important source of tools for exchange of information is the Convention on Mutual Administrative Assistance in Tax Matters (the Convention), which was developed jointly by the OECD and the Council of Europe in 1988 and amended by Protocol in 2010.
The Convention is a sophisticated multilateral tool setting forth a uniform standard for information exchange, harmonizing interpretations of the terms and conditions governing information exchange, as well as providing adequate guarantees for the respect of taxpayers’ rights.
Currently, 84 countries are parties to the Convention, including 39 EU countries and 14 offshores (of 36). It is important that no additional agreements are required to make the Convention effective. However, the introduction of automatic tax information exchange stipulated in Article 6 of the Convention should indeed be established through an administrative agreement between the competent authorities.
EU Directives are also essential as international information exchange tools.
In 2003 the European Council adopted Directive 2003/48/EC on taxation of savings income in the form of interest payment (the Savings Directive) to improve cooperation in the field of tax assessment and tax collection. The Saving Directive establishes a system of automatic exchange of tax information among Member States. The Savings Directive was revised in 2014 to respond to new challenges.
In 2011 the Council Directive 2011/16/EU (the Administrative Cooperation Directive) repealing Directive 77/799/EEC and amending the tools for administrative cooperation in the field of taxation was issued. Among the most important novelties under the Administrative Cooperation Directive are the introduction of deadlines for information exchange and restrictions for declining the information exchange in some instances. The Administrative Cooperation Directive recently underwent significant changes which are expected to come into effect from 1 January 2016 (1 January 2017 for Austria and Luxembourg).
Apart from such mechanisms as international treaties and conventions, a new tool for information exchange, the Foreign Account Tax Compliance Act (FATCA) has been introduced recently. It is a US law designed to prevent tax evasion by US citizens using offshore banking facilities. FATCA creates a new tax information reporting and withholding regime for certain foreign investors with the primary intent to obtain information on US taxpayers rather than to raise revenue.
The most distinctive feature of FATCA is that, being a US law, it actually applies to non-US financial institutions and requires information exchange with IRS in respect of certain accounts. As of now, 30 countries have agreed to FATCA terms, 25 countries have agreed with the main principles, and 17 countries are currently negotiating its terms. In June 2014, Ukraine confirmed its will to enter into an agreement with the US Government and implement FATCA rules.
Along with FATCA, there is a number of FATCA-type arrangements, such as UK “Son of FATCA” announced in 2012 introducing similar agreements to be entered into between the UK and its three Crown Dependencies–the Isle of Man, Guernsey and Jersey — and seven Overseas Territories — the Cayman Islands, the BVI, Bermuda, Anguilla, Turks and Caicos Islands, Montserrat, and Gibraltar.
In 2013, the G5 (France, Germany, Italy, Spain, UK) announced the pilot automatic information exchange arrangement introducing automatic exchange of a wide range of financial information to detect tax evasion as well.
As an illustration of the tendency for growth in transparency, the drastic change of Switzerland’s position with regard to information exchange should be taken into account. Switzerland has been known as a safe haven for financial assets due to its strong and unshakeable bank secrecy rules. However, giving credit to the international cooperation mainly in the tax administration sphere, Switzerland first withdrew its reservations to Article 26 to the OECD Model Convention and then elaborated the so-called Rubik Agreement designed to allow balancing the bank secrecy and Switzerland’s well-known neutral position with growing fights against abuse of banking secrecy.
The following states have so far concluded the Rubik Agreement: Germany, UK, Austria, and Liechtenstein.
However, the most remarkable and important result of international cooperation on increasing information exchange is the new OECD Standard for Automatic Exchange of Financial Account Information in Tax Matters developed by the OECD at the request of G20 and launched on 21 July 2014. The New Standard requires financial institutions (incl. custodians, certain investment and insurance companies) to report information on accounts held by non-resident individuals and entities (incl. trusts and foundations) to their tax administrations.
The particular feature of the new standard is that the Multilateral Convention on Mutual Administrative Assistance in Tax Matters and EU Savings/Administrative Cooperation Directives may be sufficient to implement the new Standard.
The new Standard will apply starting from 2017. A number of countries have committed themselves to implement it by 2018.
In addition to the new OECD standard, on 29 October 2014 51 jurisdictions signed a multilateral competent authority agreement (the Agreement) to automatically exchange information based on Article 6 of the Convention. The Agreement specifies the details of what information will be exchanged and when, as set out in the Standard for Automatic Exchange of Financial Information in Tax Matters and thus makes Article 6 of the Convention effective. As of 19 November 2014 there were already 52 signatories to the Agreement, which is a very clear sign of the overall increase in transparency and start of a new era in the automatic information exchange on tax matters.
Though Ukraine is not an OECD member, it takes a proactive stance to the tendencies described above. A great move was made upon the signing of the Association Agreement with EU, which contains Ukraine’s undertaking to ensure that internationally agreed standards for regulation and supervision in the financial services sector and for combating tax evasion and avoidance are implemented and applied in its territory.
Even prior to the EU Association Agreement, Ukraine had already declared its proactive position by being a party to the Convention on Mutual Administrative Assistance in Tax Matters and FATCA intra-government agreement was announced to be signed.
Ukraine has also given a clear sign of its willingness to participate in international cooperation by signing the Memorandum of Understanding with OECD on 7 October 2014, which inter alia names collection of taxes and tax administration issues as one of the areas for Ukraine’s collaboration with the OECD.
Thus, we could witness quick progress in information exchange on tax matters in the near future, which requires all international business to be prepared for the new rules ahead of time.
Авторы: Pavlo V. Khodakovskyy, Ganna S. Demchenko
Источник: http://www.ujbl.info/article.php?id=570