The exchange of international tax information: The Panama Case.
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1 The exchange of international tax information: The Panama Case.
2 1.The exchange of tax information at an international level: General issues Limitations in Tax Management in the operation for the exchange of information 2. Panama and the International Double Taxation Treaties The case of Panama Agreement signs by the Republic of Panama Local provisions 3. Conclusions and contributions 2
3 General Issues The efficacy of each State in tax management rests greatly on access to information. It is the product of cooperation between administrative entities in charge of collecting taxes. Internally, it becomes particularly necessary among government organs in order to develop and execute the administration of any kind of tax. 3
4 Problems: It is very difficult to control tax evasion, more so without availability of information on economic facts taking place fully or partially abroad, for nationals, persons domiciled and residing or not in other States. Economic activities with an international scope may because of lack in transnational tax information, escape global rent control by the States. 4
5 Need for international agreements intended to guarantee the effective application of a tax information exchange procedure at an international level. The exchange of information may take place informally between States without any kind of agreement based on commitments set out in a Treaty: Downsides of this system: there is no conventional commitment and lacks the necessary juridical support. 5
6 Then: A need arises to enter into international agreements to regulate the subject. Allow contracting States access to information that they could not otherwise obtain from other States through means and mechanisms in domestic laws. 6
7 Limits to the administration of taxes in the exchange of information Which authorities shall have access to said information? What evidence value does this information have in fiscal proceedings? Can such data be used in other cases that are not administrative-tax i.e., a criminal case? 7
8 There is then, a limit to the exchange of tax information DTAs establish these limits as to: The persons who may have access to the information exchanged and, The use of the transmitted data 8
9 Agreement signed by the Government of the Republic of Panama: DTAs and TIEAs Clauses provide for tax information exchange Elements of and considerations over the text of the Agreement and Protocol of the Agreement 9
10 1. Purpose of information exchange The exchange of information is not limited by articles 1 and 2: Residents or not All taxes Defines the concept of competent authority The exchange of tax information between competent authorities will not be automatic but on request and requirement of one of the Contracting States 10
11 2. Confidentiality of information Handling of information Concept of authority The information obtained by these persons or authorities may be disclosed exclusively at public hearings held by courts of administrative or jurisdictional justice, as well as in the sentences of a judicial nature exclusively 11
12 3. In no case will the provisions in paragraphs 1 and 2 be construed as an obligation of the Contracting State to: Adopt administrative measures contrary to its laws or administrative practices or those of another Contracting State; Deliver information that could not be obtained on the basis of its own legislation or exercise of ordinary administrative practices or those of another Contracting State; and Deliver information that discloses a business, industrial, commercial or professional secret, or an industrial process, or information whose disclosure is contrary to public order. 12
13 4. Information kept by banks and other financial institutions Panama shall have full force and legal sovereignty over compliance and respect to its public order in case of a request for tax information. What does this mean? 13
14 Full force and respect shall be guaranteed of articles 110 and 111 of Executive Decree 52/2008 by which the text of Decree Law 9/1998 is adopted, as amended by Decree Law 2/2008 (Banking Law). That the information is requested by competent authority. That the information requested falls within a criminal process. 14
15 Finally and regarding this point: The exchange of information kept by banks could take place, but based primarily on our competent authority (the Ministry of Finance) ensuring that all aspects and requirements established in the Agreements and its Protocols are fulfilled. Exact identification of the person investigated; A detailed request as to the information required; The purpose and use to be given to the information is specified. 15
16 - And above all, this information shall be requested to competent authorities by a judge, justice or judiciary or administrative authority with jurisdiction in requesting country to carry out a criminal tax process. - Before delivering the banking information, the delivering State shall afford the owner of the information the opportunity to be heard, prior notice and communication of what is going on, so it may exercise a defense before any irregularity or arbitrariness by a judicial or administrative authority of the Requiring State.
17 Negotiated DTA s / DTA s in force 1 AUSTRIA 2 BAHREIN 3 BARBADOS 4 BELGIUM 5 KOREA 6 UNITED ARAB EMIRATES 7 SPAIN 8 FRANCE 9 NETHERLANDS 10 IRELAND 11 ISRAEL 12 ITALY 13 LUXEMBURG 14 MEXICO 15 PORTUGAL 16 QATAR 17 UNITED KINGDOM 18 CZECH REPUBLIC 19 SINGAPORE 17
18 Negotiated TIEA s / TIEA s in force 1 GERMANY 2 CANADA 3 DENMARK 4 USA 5 FINLAND 6 GREENLAND 7 ICELAND 8 FAROE ISLANDS 9 NORWAY 10 SWEDEN 18
19 Conclusions and contributions The exchange of tax information constitutes a need for the development of tax management duties. The exchange of goods and capitals as well as persons, constitutes a link of the business, economic and cultural globalization we live today. Our conclusion is that communication ought to be an instrument to the service of a specific purpose, which is to fight tax evasion, therefore it should be included in the DTAs. 19
20 Panama is headed towards a new era in international tax with the signing and entering into force of Double Taxation Avoidance Treaties. Panama must oversee due fulfillment of the TDAs and their Protocols as well as the enforcement of domestic law regulations that guarantee due process, and that the requests exhaust all remedies and mechanisms established in our legislation, and in the case of banks through our own banking law. Panama s administrative officials need adequate training without downplaying a balanced and unwavering position when exercising the exchange of tax information. 20
21 Thank you 21
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