Definition of tax haven

The first Additional Provision of Law 36/2006, of November 29, on measures for the prevention of tax fraud ( BOE of the 30th), contains the definition of tax haven, of zero taxation and of effective exchange of tax information.

Regarding the definition of tax haven its sections 1 and 2 establish:

"1. Countries and territories determined by regulation are considered tax havens.
2. The list of countries and territories that are considered tax havens may be updated based on the following criteria:

1. The existence with said country or territory of an agreement to avoid international double taxation with an information exchange clause, an agreement for the exchange of information on tax matters or the Convention on Mutual Administrative Assistance in Tax Matters of the OECD and of the Council of Europe amended by the 2010 Protocol, which is applicable.
2. That there is no effective exchange of tax information in the terms provided for in section 4 of this Additional Provision.
3. The results of the peer reviews conducted by the Global Forum on Transparency and Exchange of Information for Tax Purposes ."

Currently, the only published regulatory list of countries and territories that are considered tax havens is that included in Article 1 of Royal Decree 1080/1991, of July 5, which we include at the end of this section.

With regard to these countries, it should be noted that Article 2 of the aforementioned Royal Decree 1080/1991 (added by Article 2 of Royal Decree 116/2003, of January 31), provides that the countries and territories referred to in Article 1 thereof that sign with Spain an agreement on the exchange of information on tax matters or an agreement to avoid double taxation with an information exchange clause will cease to be considered tax havens at the time when said agreements or conventions come into force. For this reason, the table has indicated and the following notes have explained which countries and territories have signed with Spain an agreement for the exchange of information on tax matters or an agreement to avoid double taxation with an information exchange clause.

However, without prejudice to the above, it should also be noted that since 2017 the European Union has been compiling a list of non-cooperative countries and territories for tax purposes, taking into account criteria of transparency and exchange of information for tax purposes, tax equity and the implementation of measures against the erosion of the tax base and the transfer of profits. This list is reviewed and updated periodically. The latest of these reviews was published in the Official Journal of the European Union ( OJEU ) of 21 June 2019.

In accordance with the provisions of section 1 of the Fiftieth Additional Provision of Law 9/2017, of November 8 ( BOE of 9) "The Government must update the list of countries and territories that have the qualification of tax haven in accordance with the provisions of the First Additional Provision of Law 36/2006, of November 29, on measures for the prevention of tax fraud. This update will be made once the lists of non-cooperative jurisdictions that are being prepared by the OECD and the European Union have been published so that the results obtained ."