[16] ITA`s communications to the applicants followed the receipt of a request for information from an unnamed requesting state with which the British Virgin Islands had signed a TIEA. Although the relevant TIEA was not submitted to the Court, the Court produced a copy of the model agreement. Article 1 of this Model requires the competent authorities of the Parties to provide assistance by exchanging predictable information relevant to the administration and enforcement of the Parties` domestic tax and tax laws, including information that may be relevant to the determination. Valuation a, review, enforcement, recovery or recovery of tax claims against persons subject to such persons. [4] By letters of May 8, 2015 and September 7, 2015, the applicants` legal representatives sought to bring their concerns to the attention of the ITA. In particular, they stressed that they were not in a position to assess the validity of the opinions because of the lack of information or factual basis on which the requests were based. [43] Finally, the ITA relied heavily on several peer review reports during this process. In general, although these instruments may provide limited support for interpretation, they need to be carefully considered. The old adage “If you`re a hammer, everything looks like a nail” is clearly true here. Peer review would be appropriate for matters that would affect a tribunal if an applicant alleges that he or she has not been treated fairly or that his or her rights have been violated. In its decision, the Court gave only limited weight to these reports. [2003] 1 WLR at page 299, where the Court found that sufficient information had been provided about the nature of the criminal investigation.
[36] Of course, obvious caution is required. The particular context here requires due consideration to the need for confidentiality. It is clear that the approach taken by the Bermudian authorities prior to 2001 was unjustified and disproportionate. The automatic disclosure of such requests is clearly contrary to the regulatory system. The Court is satisfied that there are very good reasons to support the respondent`s contention that the starting point or default position should be that such claims must be kept confidential. There is no doubt that indiscriminate disclosure carries the risk that criminals may benefit from prompt notification of the progress of an investigation and thwart the course of justice through delaying tactics. Invariably indiscriminate disclosure could undermine confidence in the mutual legal assistance system and thus compromise ultimate objectives. [32] After hearing the arguments of both parties in this case, the Court is satisfied, through counsel for the applicant, that Re Larsen is of crucial importance to the Court and of limited usefulness. The Court is satisfied that certain facts of this case did not lead the learned Commissioner to consider the principles of procedural fairness.
This case involved an application for judicial review, but the application to the Commissioner was an application for an injunction specifically disclosing the application. It is therefore not surprising that much of the relationship focused on the legal principles governing disclosure in public law proceedings and the duty of transparency. Furthermore, it must be noted that, without admitting any obligation to do so, the Controller had indeed disclosed the letter of application. It was evident that the reasons for issuing the notices were set out fully and fairly in the affidavits served on the applicant. It is therefore not surprising that the Commissioner concluded that they were sufficiently informed of the context and reasons for their challenge. Mutual Legal Assistance (Taxation) Act No. 18 of 2003 [28] The Court accepts that the defendant`s argument of confidentiality was rejected on the facts of the case, since the notice had to contain the relevant details of the request under the 1986 Act. The Court also recognises that no such requirement exists under that legislation. A similar legal matrix was obtained in a subsequent and more recent Bermuda decision. In Bunge Limited v.
Finance Minister Bunge asked the Supreme Court of Bermuda to challenge the Department of Finance`s decision to issue the opinion on the disclosure of certain tax information through judicial review. Bunge argued that the notification was legally invalid and requested that it be rescinded on the ground that the underlying claim did not comply with the legal requirements of the TIEA and the 2005 Act. Country-by-country reporting under the Mutual Legal Assistance (Tax Matters) (Amendment) Act 2018 (Mutual Legal Assistance (Tax Matters) Act 2018 (as amended, the “Act”). [27] The gap between confidentiality and transparency in mutual legal assistance decision-making has been examined in a number of cases with varying results. In the Caribbean, the analysis begins with Lewis & Ness v. Secretary of the Treasury, a case decided by the Bermuda Court of Appeal under the U.S. – Bermuda Tax Convention Act of 1986 as the authority on the proposition that a taxpayer or requested party should be entitled to see the foreign government application on which the local notice is based. in the interests of fundamental fairness.
At paragraph 55 of the judgment, the Court of Appeal stated: “55. With respect to the second argument, we therefore conclude that, although the Act does not expressly require the Minister to submit the application to the person on whom a section 5 notice is served, the notice must contain the relevant details of the application, which means that it must detail the relevant parts of the application. including the information required in Division 4 and the definition of the information to be provided by the person on whom the notice is served.
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