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⁾

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: