peer reviews : Anguilla 2011 ; phase 1 ; August 2011

74 Pages·2011·1.124 MB·English

by  OECD

Global Forum on Transparency and Exchange of Information GLOBAL FORUM ON TRANSPARENCY AND EXCHANGE
for Tax Purposes
OF INFORMATION FOR TAX PURPOSES
PEER REVIEWS, PHASE 1: ANGUILLA
The Global Forum on Transparency and Exchange of Information for Tax Purposes is the
multilateral framework within which work in the area of tax transparency and exchange
Peer Review Report
of information is carried out by over 100 jurisdictions which participate in the work of the
Global Forum on an equal footing.
Phase 1
The Global Forum is charged with in-depth monitoring and peer review of the
implementation of the standards of transparency and exchange of information for tax
Legal and Regulatory Framework
purposes. These standards are primarily refl ected in the 2002 OECD Model Agreement
on Exchange of Information on Tax Matters and its commentary, and in Article 26 of the
OECD Model Tax Convention on Income and on Capital and its commentary as updated in
2004, which has been incorporated in the UN Model Tax Convention.
ANGUILLA
The standards provide for international exchange on request of foreseeably relevant
information for the administration or enforcement of the domestic tax laws of a requesting
party. “Fishing expeditions” are not authorised, but all foreseeably relevant information
must be provided, including bank information and information held by fi duciaries,
regardless of the existence of a domestic tax interest or the application of a dual P
e
criminality standard. er R
e
All members of the Global Forum, as well as jurisdictions identifi ed by the Global Forum v
ie
as relevant to its work, are being reviewed. This process is undertaken in two phases. w
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Phase 1 reviews assess the quality of a jurisdiction’s legal and regulatory framework for e
p
the exchange of information, while Phase 2 reviews look at the practical implementation of o
r
that framework. Some Global Forum members are undergoing combined – Phase 1 plus t P
h
Phase 2 – reviews. The ultimate goal is to help jurisdictions to effectively implement the as
e
international standards of transparency and exchange of information for tax purposes. 1
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e
All review reports are published once approved by the Global Forum and they thus g
a
represent agreed Global Forum reports. l a
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d
For more information on the Global Forum for Transparency and Exchange of R
e
Information for Tax Purposes and for copies of the published review reports, please visit g
u
www.oecd.org/tax/transparency and www.eoi-tax.org. la
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Please cite this publication as: m
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OECD (2011), Global Forum on Transparency and Exchange of Information for Tax Purposes o
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http://dx.doi.org/10.1787/9789264117655-en G
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23 2011 35 1 P
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Global Forum
on Transparency
and Exchange
of Information for Tax
Purposes Peer Reviews:
Anguilla 2011
PHASE 1
August 2011
(reflecting the legal and regulatory framework
as at May 2011)
This work is published on the responsibility of the Secretary-General of the OECD.
The opinions expressed and arguments employed herein do not necessarily reflect
the official views of the OECD or of the governments of its member countries or
those of the Global Forum on Transparency and Exchange of Information for Tax
Purposes.
Please cite this publication as:
OECD (2011), Global Forum on Transparency and Exchange of Information for Tax Purposes Peer
Reviews: Anguilla 2011: Phase 1: Legal and Regulatory Framework, Global Forum on
Transparency and Exchange of Information for Tax Purposes: Peer Reviews, OECD
Publishing.
http://dx.doi.org/10.1787/9789264117655-en
ISBN 978-92-64-11764-8(print)
ISBN 978-92-64-11765-5 (PDF)
Series: Global Forum on Transparency and Exchange of Information for Tax Purposes: Peer Reviews
ISSN 2219-4681 (print)
ISSN 2219-469X (online)
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Revised version, September 2011.
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3
TABLE OFCONTENTS –
Table of Contents
About the Global Forum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Executive summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Information and methodology used for the peer review of Anguilla . . . . . . . . . . 9
Overview of Anguilla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Recent developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Compliance with the Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Availability of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A.1.Ownership and identity information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
A.2.Accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
A.3.Banking information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
B. Access to Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
B.1. Competent Authority’s ability to obtain and provide information. . . . . . . . 46
B.2.Notification requirements and rights and safeguards. . . . . . . . . . . . . . . . . . 50
C. Exchanging Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
C.1.Exchange-of-information mechanisms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
C.2.Exchange-of-information mechanisms with all relevant partners. . . . . . . . 57
C.3. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
C.4.Rights and safeguards of taxpayers and third parties. . . . . . . . . . . . . . . . . . 60
C.5.Timeliness of responses to requests for information . . . . . . . . . . . . . . . . . . 61
PEER REVIEW REPORT – PHASE1: LEGAL AND REGULATORY FRAMEWORK – ANGUILLA © OECD 2011
4
– TABLE OFCONTENTS
Summary of Determinations andFactorsUnderlyingRecommendations. . . . 63
Annex1: Jurisdiction’s Response to the Review Report . . . . . . . . . . . . . . . . . . 67
Annex2: List of all Exchange-of-Information Mechanisms inForce. . . . . . . . 68
Annex3: List of all Laws, Regulations andOtherRelevantMaterial . . . . . . . 69
PEER REVIEW REPORT – PHASE1: LEGAL AND REGULATORY FRAMEWORK – ANGUILLA © OECD 2011
5
ABOUT THE GLOBAL FORUM –
About the Global Forum
The Global Forum on Transparency and Exchange of Information for Tax
Purposes is the multilateral framework within which work in the area of tax
transparency and exchange of information is carried out by over 100 jurisdic-
tions, which participate in the Global Forum on an equal footing.
The Global Forum is charged with in-depth monitoring and peer review of
the implementation of the international standards of transparency and exchange
of information for tax purposes.These standards are primarily reflected in the
2002 OECD Model Agreement on Exchange of Information on Tax Matters
and its commentary, and in Article26 of the OECDModel Tax Convention on
Income and on Capital and its commentary as updated in 2004.These standards
have also been incorporated into the UNModel Tax Convention.
The standards provide for international exchange on request of foreseeably
relevant information for the administration or enforcement of the domestic tax
laws of a requesting party. Fishing expeditions are not authorised but all fore-
seeably relevant information must be provided, including bank information
and information held by fiduciaries, regardless of the existence of a domestic
tax interest.
All members of the Global Forum, as well as jurisdictions identified by
the Global Forum as relevant to its work, are being reviewed. This process
is undertaken in two phases. Phase 1 reviews assess the quality of a juris-
diction’s legal and regulatory framework for the exchange of information,
while Phase 2 reviews look at the practical implementation of that frame-
work. Some Global Forum members are undergoing combined – Phase 1
and Phase2 – reviews.The Global Forum has also put in place a process for
supplementary reports to follow-up on recommendations, as well as for the
ongoing monitoring of jurisdictions following the conclusion of a review.The
ultimate goal is to help jurisdictions to effectively implement the international
standards of transparency and exchange of information for tax purposes.
All review reports are published once adopted by the Global Forum.
For more information on the work of the Global Forum on Transparency
and Exchange of Information for Tax Purposes, and for copies of the pub-
lished review reports, please refer to www.oecd.org/tax/transparency.
PEER REVIEW REPORT – PHASE1: LEGAL AND REGULATORY FRAMEWORK – ANGUILLA © OECD 2011

7
EXECUTIVE SUMMARY –
Executive summary
1. This report summarises the legal and regulatory framework for trans-
parency and exchange of information in Anguilla.The international standard
which is set out in the Global Forum’s Terms of Reference to Monitor and
Review Progress Towards Transparency and Exchange of Information, is
concerned with the availability of relevant information within a jurisdiction,
the competent authority’s ability to gain access to that information, and in
turn, whether that information can be effectively exchanged on a timely basis
with its exchange of information partners.
2. Anguilla is a small island of about 15000 inhabitants located between
the Caribbean Sea and the North Atlantic Ocean and is a self-governed over-
seas territory of the United Kingdom. Anguilla has a robust and modern
financial services industry, including online incorporation of its more than
10000 International Business Companies and has no direct taxation.
3. Anguilla formally committed to the international standards on exchange
of information in 2002, and has undertaken to rapidly develop its exchange of
information network since 2009.Since then, Anguilla has signed 17 TIEAs, six
of which are currently in force.Anguilla continues to develop its treaty network.
4. Also in 2009, Anguilla enacted the International Co-operation (Tax
Information Exchange Agreements) Act (ICTIEA Act), which gives the
Anguillan authorities the ability to meet the obligations under its treaties.
This Act also gives the Anguillan authorities broad powers to access any
information from any person pursuant to an international treaty, while pro-
viding for sufficient rights and safeguards for taxpayers.
5. In respect of availability of ownership and identity information,
Anguilla has clear requirements for ordinary companies, international busi-
ness companies, partnerships, and foundations to maintain this information,
including penalties for failure to comply. In addition, Anguilla has a strong
anti-money laundering (AML) regime which applies to most entities because
of the requirement to have a licensed service provider as a registered agent
and to provide a registered office. The AML laws also apply to banks and
requires the maintenance of records of transactions in line with the Terms of
PEER REVIEW REPORT – PHASE1: LEGAL AND REGULATORY FRAMEWORK – ANGUILLA © OECD 2011
8
– EXECUTIVE SUMMARY
Reference.However, in the case of LLCs, it is not certain that ownership and
identity information is available. In addition, for trusts, a service provider
would only have to know the identity of the beneficiaries in the case of “a
higher level of risk”, which may impede the availability of information on
trusts.
6. Anguilla’s accounting requirements are not in line with the interna-
tional standard.The requirements to retain records of accounts are not consist-
ently in place for all entities and there is no requirement to retain underlying
documentation, nor is there a requirement in place to retain accounting records
for 5 years in line with the Terms of Reference.
7. Anguilla’s response to recommendations in this report as well as the
application of the legal framework to the practices of its competent authority
will be considered in detail in the Phase2 Peer Review which is scheduled for
the second half of 2013.In the meantime, a follow up report on the steps under-
taken by Anguilla to answer the recommendations made in this report should
be provided to the PRG within six months after the adoption of this report.
PEER REVIEW REPORT – PHASE1: LEGAL AND REGULATORY FRAMEWORK – ANGUILLA © OECD 2011