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Non-Resident Taxation Manual (February 2024)

Appendix IV. Non-cooperative jurisdictions

Regulations: First and tenth additional provision and second transitional provision of Law 36/2006, of November 29, on measures for the prevention of tax fraud (in the wording given by Law 11/2021, of July 9, of measures to prevent and combat tax fraud, with effect from July 11, 2021 )

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

In line with the new international parameters, the term tax havens is adapted to that of non-cooperative jurisdictions . The references made in the 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 and the normative references made to States with which there is an effective exchange of tax information or tax matters, they will be understood to be carried out to States with which there are regulations on mutual assistance regarding the exchange of tax information in the terms provided for in Law 58/2003, of December 17, General Tax , that is applicable.

For the purposes of General Tax Law 58/2003, mutual assistance will be understood as the set of actions of assistance, collaboration, cooperation and others of a similar nature that the Spanish State provides, receives or develop 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 conventions to avoid double taxation or other international conventions.

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

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 58/2003, of December 17, General Tax, which is applicable

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

    3. The result of the ''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 Tax on Personal Income, Corporate Tax 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 Capital Tax is not applied. Income of non-residents, as applicable.

Taxes whose purpose is the taxation of income, even partially, will be considered identical or analogous tax , regardless of whether the object thereof is the income itself, the income or any other indicative element of this.

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 Tax Regimes Forum Harmful OECD .

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

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

As long as the countries or territories that are considered non-cooperative jurisdictions are not determined by Ministerial Order, the countries or territories provided for in Royal Decree 1080/1991, of 5 July.

Since February 2, 2003, the date of entry into force of Royal Decree 116/2003, of January 31, a provision was incorporated into Royal Decree 1080/1991 according to which those countries or territories will no longer be considered non-cooperative jurisdiction. that sign with Spain an agreement to avoid international double taxation with a clause for the exchange of information or an agreement for the exchange of information on tax matters in which it is expressly established that they cease to have such consideration, from the moment in which these agreements or agreements are applied.

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

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

Consequently, the list of territories of Royal Decree 1080/1991, with the modifications arising from the provisions of Royal Decree 116/2003, will continue to be applicable as long as a new list of countries is not approved by Ministerial Order. and territories with the consideration of non-cooperative jurisdiction.

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

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

Old 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. Emirate of the State of Bahrain
  5. Brunei Sultanate
  6. Republic of Cyprus(17)
  7. United Arab Emirates(1)
  8. Gibraltar
  9. Hong Kong(16)
  10. Anguilla
  11. Old and bearded
  12. The Bahamas(14)
  13. Barbados(fifteen)
  14. Bermuda
  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. Mauricio
  27. Montserrat
  28. Republic of Nauru
  29. Solomon Islands
  30. St. Vincent and the Grenadines
  31. St. Lucia
  32. Republic of Trinidad and Tobago(8)
  33. Turks and Caicos Islands
  34. Republic of Vanuatu
  35. British Virgin Islands
  36. Virgin Islands of the United States of America
  37. Hashemite Kingdom of Jordan
  38. Lebanese Republic
  39. Republic of Liberia
  40. Principality of Liechtenstein
  41. Grand Duchy of Luxembourg, with regard to income received by the Companies referred to in paragraph 1 of the Protocol annexed to the Convention, for the avoidance of double taxation, of June 3, 1986(7)
  42. Macau
  43. Principality of Monaco
  44. Sultanate of Oman(18)
  45. Republic of Panama(12)
  46. Republic of San Marino(eleven)
  47. Republic of Seychelles
  48. Republic of Singapore(13)

Notes:

(1) The Convention between Spain and the United Arab Emirates to avoid double taxation comes into force on 04/02/2007 (see annex I ). (Back)

(2) The Convention between Spain and Malta to avoid double taxation comes into force on 09/12/2006 (see annex I ). (Back)

(3) Since 01-27-2010 (date of entry into force of the Agreement on the exchange of information on tax matters – BOE 11-24-2009 -) it is no longer considered a tax haven. (Back)

(4) Since 01-27-2010 (date of entry into force of the Agreement on the exchange of information on tax matters - BOE 11-23-2009 -) it is no longer considered a tax haven. (Back)

(5) The Agreement between Spain and Jamaica to avoid double taxation comes into force on 5-16-2009 (see annex I ). (Back)

(6) The companies mentioned in paragraph A of section V of the Protocol to the Convention are excluded from it and from the effects of the application of the first Additional Provision of Law 36/2006 on measures for the prevention of tax fraud. (Back)

(7) Since 07-16-2010 (date of entry into force of the Protocol modifying the Convention -BOE 05-31-2010-) it is no longer considered a tax haven. (Back)

(8) The Convention between Spain and Trinidad and Tobago to avoid double taxation comes into force on 12-28-2009 (see annex I ). (Back)

(9) Since 02-10-2011 (date of entry into force of the Agreement on the exchange of information on tax matters - BOE 11-23-2010-) it is no longer considered a tax haven. (Back)

(10) Since October 10, 2010 (date of dissolution of the Netherlands Antilles) Curaçao and Saint Martin became autonomous States of the Kingdom of the Netherlands. The remaining islands (Bonaire, Saint Eustatius and Saba) have become part of the Netherlands. The Agreement on Exchange of Information signed with the Netherlands Antilles is applicable to Saint Martin and Curaçao, while the CDI with the Netherlands applies to the other three islands. (Back)

(eleven) Since 08-02-2011 (date of entry into force of the Agreement on the exchange of information on tax matters - BOE 06-06-2011-) it is no longer considered a tax haven. (Back)

(12) The Agreement between Spain and Panama to avoid double taxation comes into force on 07-25-2011 (see annex I ). (Back)

(13) Since 01-01-2013 (date of application of the Convention-BOE 01-11-2012-) it is no longer considered a tax haven. (Back)

(14) Since 08-17-2011 (date of entry into force of the Agreement on the exchange of information on tax matters -BOE 07-15-2011-) it is no longer considered a tax haven. (Back)

(fifteen) Since 10-14-2011 (date of entry into force of the Convention to avoid double taxation between Spain and Barbados - BOE 09-14-2011-) it is no longer considered a tax haven. (Back)

(16) Since 04-01-2013 (date of application of the Convention-BOE 04-14-2012-) it is no longer considered a tax haven. (Back)

(17) Since 05-28-2014 (date of application of the Convention-BOE 05-26-2014-) it is no longer considered a tax haven. (Back)

(18) Since 09-19-2015 (date of application of the Convention-BOE 09-08-2015-) it is no longer considered a tax haven. (Back)

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

  1. Eel
  2. Emirate of the State of Bahrain
  3. Barbados
  4. Bermuda
  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. Virgin Islands of the United States of America
  18. 18. Jersey
  19. Palau
  20. Samoa, regarding the harmful tax regime (offshore business)
  21. American Samoa
  22. Seychelles
  23. Trinidad and Tobago
  24. Vanuatu

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

Countries and territories that enter ( countries not included in the old list of Royal Decree 1080/1991 and that are included in the new list ) Countries and territories leaving ( countries included in the old list of Royal Decree 1080/1991 and are not included in the new list)Countries and territories that remain (countries that appear on both lists)
Barbados (with CDI) Old and bearded Eel
guam Brunei Bahrain
Palau Cook Islands Bermuda
Samoa, reg. harmful tax (offshore business) Granada Dominica
American Samoa Jordan fiji
Trinidad and Tobago (with CDI) Lebanon Gibraltar
- Liberia Guernsey
- Liechtenstein Isle of Man
- Macau Cayman Islands
- Mauricio Falkland Islands
- Monaco Mariana Islands
- Monserrat Solomon Islands
- Monaco Turks and Caicos Islands
- Monserrat British Virgin Islands
- Nauru Virgin Islands of the United States of America
- St. Vincent and the Grenadines Jersey
- St. Lucia Seychelles
- - Vanuat