Definition of non-cooperative jurisdiction

The first Additional Provision of Law 36/2006, of November 29, on measures for the prevention of tax fraud ( BOE of 30), after the modification introduced by the sixteenth article of the Law 11/2021, of July 9, on measures to prevent and combat tax fraud, transposing Council Directive (EU) 2016/1164, of July 12, 2016, establishing rules against tax avoidance practices that directly affect the functioning of the internal market, the modification of various tax rules and the regulation of gambling (BOE of 10), contains the definition of countries and territories that are considered non-cooperative jurisdictions that It replaces that of a tax haven, of low or no taxation and of effective exchange of tax information.

Regarding the definition of non-cooperative jurisdictions, sections 1 and 2 establish:

1. Countries and territories, as well as harmful tax regimes, that are determined by the Minister of Finance by Ministerial Order in accordance with the criteria established in the following sections of this article will be considered non-cooperative jurisdictions.
   

2. The list of countries and territories that are considered non-cooperative jurisdictions may be updated based on the following criteria:

   1. Regarding fiscal transparency:

      1. The existence with said country or territory of regulations on mutual assistance regarding the exchange of tax information in the terms provided for in Law 58/2013, of December 17, General Tax, that is applicable.

      2. Compliance with an effective exchange of tax information with Spain.

      3. The result of peer evaluations carried out by the Global Forum on Transparency and Exchange of Information for Tax Purposes.

      4. The effective exchange of information related to the beneficial owner, defined in the terms of Spanish regulations on the prevention of money laundering and terrorist financing.

      For the purposes of this letter a), effective exchange of information is understood to mean the application of the regulations on mutual assistance regarding the exchange of tax information in accordance with the terms of reference approved by the Global Forum on Transparency and Exchange of Information for Purposes. Prosecutors.

   2. That facilitate the celebration or existence of extraterritorial instruments or companies, aimed at attracting benefits that do not reflect real economic activity in said countries or territories.

   3. The existence of low or no taxation.

      Low taxation exists when in the country or territory in question a considerably lower effective tax level is applied, including the zero rate, than that required in Spain for a tax identical or analogous to the Personal Income Tax, the Tax on Companies or Non-Resident Income Tax.

      There is no taxation when in the country or territory in question a tax identical or analogous to the Personal Income Tax, the Corporation Tax or the Non-Resident Income Tax is not applied, as appropriate.

      Taxes considered to be identical or analogous are those intended to tax income, including partially, regardless of whether the taxable amount is income itself, revenues, or any other element indicating income.

3.  The list of harmful tax regimes that are considered non-cooperative jurisdictions may be updated based on the criteria of the Code of Conduct on Business Taxation of the European Union or the Forum on Harmful Tax Regimes of the OECD.

Attention: All references made in the Personal Income Tax regulations to tax havens, to countries or territories with which there is no effective exchange of information, or of zero or low taxation, will be understood to be made to the definition of non-cooperative jurisdiction established in the first Additional Provision of the Law 36/2006, of November 29, in its wording in force as of July 11, 2021.

Now, until the countries or territories that are considered non-cooperative jurisdictions are approved by Ministerial Order, the countries or territories provided for in Royal Decree 1080/1991, of July 5, which determines the countries or territories that are considered tax havens.