Appendix IV. Non-cooperative jurisdictions

Regulations: First and tenth additional provision and second transitional provision of Act 36/2006, of 29 November, on prevention measures tax fraud (as drafted by Law 11/2021 of 9 July, on measures to prevent and combat tax fraud, effective from 11 July 2021 )

Order HFP/115/2023, of 9 February, determining the countries and territories, as well as the harmful tax regimes, which are considered non-cooperative jurisdictions.

In line with the new international parameters, the term "tax havens" is adapted to that of non-cooperative jurisdictions. References made to tax havens, countries or territories with which there is no effective exchange of information, or of zero or low taxation shall be understood as being carried out in the definition of non-cooperative jurisdiction and the regulatory references made to States with which there is an effective exchange of taxation tax or tax information, shall be understood as those made to States with which there are regulations on mutual assistance in the area of exchanging tax information in the terms provided for in Act 58/2003, of 17 December, General Tax, applicable.

For the purposes of Act 58/2003, mutual assistance will be understood as all assistance, collaboration actions , cooperation and others of a similar nature that the Spanish State provides, receives or develops with the European Union and other international or supranational entities, and with other States under the regulations on mutual assistance between the Member States of the European Union or within the framework of agreements to avoid double taxation or other international conventions.

Non-cooperative jurisdictions will be considered to be the countries and territories, as well as the harmful tax regimes, which are determined by Ministerial Order in accordance with pre-established criteria.

The list of countries and territories considered non-cooperative jurisdictions may be updated according to the following criteria:

1. With regard to fiscal transparency:

   1. The existence with that country or territory of regulations on mutual assistance in the area of tax information exchange under the terms provided for in Act 58/2003 of 17 December, which is applicable

   2. The fulfilment of effective exchange of tax information with Spain.

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

   4. The effective exchange of information relating to the beneficial owner, defined in the terms of Spanish legislation on anti-money laundering and terrorist financing.

   For the purposes of this letter (a), effective exchange of information is understood as applying the regulations on mutual assistance in the area of tax information exchange, in accordance with the terms of reference approved by the Global Forum on Transparency and Exchange of Information with Tax Purposes.

2. That facilitate the conclusion or existence of instruments or of offshore companies, aimed at attracting profits that do not reflect a real economic activity in these countries or territories.

3. The existence of cancellation or zero taxation.

   There is a tax loss when a significantly lower effective tax level is applied in the country or territory concerned, including the rate zero, the amount required in Spain in an identical or similar tax to Personal Income Tax, Corporation Tax or Non-Residents'Income Tax.

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

Taxes for the purposes of income tax, even partially, will be considered as identical or similar, regardless of whether the purpose of the tax is the income, income or any other element of the tax.

The list of harmful tax regimes considered non-cooperative jurisdictions may be updated according to the criteria of the Code of Conduct on Business Taxation of the European Union or the OECD Criminal Court Regimes Forum.

The regulations of each tax may establish specialities in the application of these rules.

With regard to those countries or territories that are considered non-cooperative jurisdictions with which Spain has signed an agreement to avoid double taxation if it is in force, the tax regulations related to the jurisdictions will not also be applicable, insofar as it is not contrary to the provisions of the aforementioned agreement.

Until countries or territories that are considered non-cooperative jurisdiction are not determined by Ministerial Order, the countries or territories provided for in Royal Decree 1080/1991, of 5 July, shall be considered as such.

Since 2 February 2003, the date of entry into force of Royal Decree 116/2003 of 31 January, was added to Royal Decree 1080/1991, a provision under which those countries or territories that sign with Spain a agreement to avoid international double taxation with an information exchange clause or an agreement to exchange information on tax matters in which establish that they cease to be considered, from the moment that these agreements or agreements are applied.

The countries or territories referred to in the previous paragraph will be considered tax havens again from the moment that such agreements or agreements cease to apply

The following territories have been removed from the original list based on the above paragraphs: Principality of Andorra, Netherlands Antilles, Aruba, Republic of Cyprus, United Arab Emirates, Hong Kong, The Bahamas, Barbados, Jamaica , the Republic of Malta, the Republic of Trinidad and Tobago, the Grand Duchy of Luxembourg, Sultanate of Oman, the Republic of Panama, the Republic of San Marino and the Republic of Singapore.

Consequently, the list of territories of Royal Decree 1080/1991, with the modifications resulting from the provisions of the Royal Decree 116/2003 will continue to apply until a new list of countries and territories is approved by Ministerial Order, with the consideration of non-cooperative jurisdiction.

Order HFP/115/2023, of 9 February, approves a new list of countries and territories that are considered non-cooperative jurisdictions.

The Order comes into force on 11 February 2023 and will be applicable to taxes without a tax period accrued from its entry into force and to other taxes whose tax period begins from that moment.

However, for countries or territories included in the new list that were not included in the old list of Royal Decree 1080/1991 (see comparative table between both lists) the Order will enter into force on 11 August 2023 and will be applicable to taxes without period tax accrued from the date of entry into force, and from other taxes whose tax period begins from that moment.

Antigua list of countries and territories that are considered non-cooperative jurisdictions in Royal Decree 1080/1991 with the modifications derived from the provisions of Royal Decree 116/2003:

1. Principality of Andorra⁽⁹⁾
2. Netherlands Antilles^(3) (10)
3. Aruba⁽⁴⁾
4. State of Bahrain Emirate
5. Sultanate of Brunei
6. Republic of Cyprus⁽¹⁷⁾
7. United Arab Emirates⁽¹⁾
8. Gibraltar
9. Hong Kong⁽¹⁶⁾
10. Anguilla
11. Antigua and Barbuda
12. The Bahamas⁽¹⁴⁾
13. Barbados⁽¹⁵⁾
14. Bermuda shorts
15. Cayman Islands
16. Cook Islands
17. Dominican Republic
18. Granada
19. Fiji
20. Guernsey and Jersey Islands (Channel Islands)
21. Jamaica^{(5) (6)}
22. Republic of Malta⁽²⁾
23. Falkland Islands
24. Isle of Man
25. Mariana Islands
26. Mauritius
27. Montserrat
28. Republic of Naurú
29. Solomon Islands
30. Saint Vincent and the Grenadines
31. Santa Lucia
32. Republic of Trinidad and Tobago⁽⁸⁾
33. Turks and Caicos Islands
34. Republic of Vanuatu
35. British Virgin Islands
36. United States Virgin Islands
37. Kingdom of Jordan
38. Lebanon
39. Republic of Liberia
40. Principality of Liechtenstein
41. Grand Duchy of Luxembourg, as regards the income received by the Companies referred to in paragraph 1 of the Protocol annexed to the Agreement, to avoid double taxation, of 3 June 1986⁽⁷⁾
42. Macao
43. Monaco Principality
44. Sultanate of Oman⁽¹⁸⁾
45. Republic of Panama⁽¹²⁾
46. Republic of San Marino⁽¹¹⁾
47. Republic of Seychelles
48. Republic of Singapore⁽¹³⁾

New list of countries and territories that are considered non-cooperative jurisdictions of Order HFP/115/2023

1. Anguilla
2. Emirate of the State of Bahrain
3. Barbados
4. Bermuda shorts
5. Dominica
6. Fiji
7. Gibraltar
8. Guam
9. Guernsey
10. Isle of Man
11. Cayman Islands
12. Falkland Islands
13. Mariana Islands
14. Solomon Islands
15. Turks and Caicos Islands
16. 16. British Virgin Islands
17. United States Virgin Islands
18. 18. Jersey
19. Palau
20. Samoa, as regards the tax system (offshore business)
21. American Samoa
22. Seychelles
23. Trinidad and Tobago
24. Vanuatu

Comparative table with the old list of Royal Decree 1080/1991: