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 November 30), after the modification introduced by the sixteenth article of 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, modification of various tax rules and regulations on gambling (BOE of July 10), contains the definition of countries and territories that are considered non-cooperative jurisdictions that replace tax haven jurisdictions, with low or no taxation and 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 whose purpose is to tax income, even partially, will be considered as identical or analogous taxes, regardless of whether the object of the tax is the income itself, the revenue or any other indicative element thereof.

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 IRPF regulations to tax havens, countries or territories with which there is no effective exchange of information, or with zero or low taxation will 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, on measures for the prevention of tax fraud, in its wording in force as of July 11, 2021.