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 the 30th), after the modification introduced by the sixteenth article of Law 11/2021, of July 9, on measures for the prevention and fight against tax fraud, transposition of Directive (EU) 2016/1164, of the Council, of July 12, 2016, establishing rules against tax avoidance practices that directly affect the functioning of the internal market, modifying various tax regulations and in matters of regulation of gambling (BOE of the 10th), contains the definition of countries and territories that are considered non-cooperative jurisdictions that replaces that of tax haven, of low or zero taxation and of effective exchange of tax information.

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

1. Non-cooperative jurisdictions shall be considered to be countries and territories, as well as harmful tax regimes, which are determined by the Minister of Finance by Ministerial Order in accordance with the criteria established in the following sections of this article.
   

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

   1. On fiscal transparency:

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

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

      3. The result of peer reviews conducted by the Global Forum on Transparency and Exchange of Information for Tax Purposes.

      4. The effective exchange of information relating to the beneficial owner, as 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 means the application of the regulations on mutual assistance in matters of exchange of tax information in accordance with the terms of reference approved by the Global Forum on Transparency and Exchange of Information for Tax Purposes.

   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 the country or territory in question applies an effective tax rate that is considerably lower, including the zero rate, than that required in Spain for a tax identical or similar to Personal Income Tax, Corporate Tax or Non-Resident Income Tax.

      There is no taxation when the country or territory in question does not apply a tax identical or similar to the Personal Income Tax, the Corporate Tax or the Non-Resident Income Tax, as applicable.

      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, countries or territories with which there is no effective exchange of information, or with zero or low taxation, shall be understood to be made to the definition of non-cooperative jurisdiction established in the First Additional Provision of Law 36/2006, of November 29, in its version in force as of July 11, 2021.

However, 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, will have such consideration.