Jurisdiction - Singapore
Reports and Analysis
Singapore – Exchange Of Information With Foreign Tax Authorities.

5 February, 2015

 

Legal News & Analysis – Asia Pacific – Singapore – Tax

 

Introduction


As tax offences become increasingly cross-boundary in nature, the investigation and prosecution of such offences requires the cooperation of the relevant jurisdictions. To that end, Singapore has maintained a firm commitment to cooperate with foreign tax authorities when necessary. In the case of ABU v Comptroller of Income Tax [2015] SGCA 4, the Singapore Court of Appeal demonstrated this position in the context of the exchange of information for tax purposes.


The National Tax Agency of Japan (“JNTA”) had requested certain banking account information relating to the Appellant from the Singapore Comptroller of Income Tax (the “Comptroller”) under a treaty between the two countries. The Comptroller applied to Court for the production of the bank statements under the Income Tax Act (“ITA”), but the Appellant sought to argue that the JNTA request was defective, and that the treaty could not allow for the exchange of information before the period where the treaty was given effect.


The Court of Appeal dismissed the appeal, finding that the Court’s role was not to substantively review the request for information, and that it need not go beyond the statements made in the request to ascertain their veracity. Further, the Court determined that Parliament had intended to permit the exchange of information for periods both before and after the treaty came into effect.

 

Brief Facts


The JNTA had sent a letter (the “Letter of Request”) to the Comptroller requesting the production of certain bank statements for accounts held by the Appellant, a Japanese national, as well as his son and their related entities. The purpose of the request was to determine whether the Appellant had failed to declare distributions received from foreign securities investment funds. The request was made pursuant to the Agreement between the Government of the Republic of Singapore and the Government of Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the “Treaty”).


As the bank statements were protected against unauthorised disclosure under the Banking Act, the Comptroller applied to Court under what was then s105J(2)of the ITA for the production of the statements. In turn, the Appellant sought to oppose the Comptroller’s application, alleging that the Letter of Request was not valid, and that the ITA did not allow for the request of information from periods before the enactment of the Treaty.


Holding Of The Court Of Appeal


The Court of Appeal upheld the decision of the High Court to allow the Comptroller’s application, ordering the production of the requested bank statements.


Validity Of Request


The Court held that the Letter of Request was in fact valid under the ITA. In doing so, the Court examined its role in the exchange of information process.

 

The exchange of information provisions in the ITA were introduced for compliance with the standard required by the Organisation of Economic Cooperation and Development 2008 Model Tax Convention on Income and on Capital (the “EOI Standard”).


Under these provisions, the Comptroller would have the power to obtain information on the request of tax treaty partner, provided that such request contained certain mandatory information, including the information sought, the identity of the individual, and the grounds for the request. The request must also contain a statement that the request is in accordance with the law of the requesting country, and that all other domestic avenues have been exhausted (“Eight Schedule Requirements”).


Here, the Letter of Request fulfilled the requirements of the ITA, including the statements that the request was in accordance with the law of Japan, and that all avenues for obtaining the information in Japan had been exhausted. However, the Appellant argued that these statements were untrue.


The Court held that it was not required to substantively review a request to the extent of inquiring into the truth of factual assertions contained in it; the validity of a request would be determined on its face. Therefore, since the Letter of Request contained the necessary information and statements, it was deemed to be valid.


Information Before Treaty Enactment


The Court also held that the ITA did allow for the exchange of information from periods before the Treaty came into force. In doing so, the Court laid down landmark principles on the retrospective applicaton of legislation.


Whether legislation has retrospective application depends on the intention of Parliament, and the Court found that Parliament had in fact intended to permit the exchange of information relating to any period both before and after the date where the Treaty was given effect as well as the date the ITA amendments on exchange of information came into force. This would be true for all tax treaties, unless a contrary provision is made in the tax treaty in question.


On the facts of the case, the Court found that the Eight Schedule Requirements had been fulfilled, and that it was justified in the circumstances of the case to order the production of requested information. Therefore, the Comptroller’s application was allowed.


Concluding Words


It should be noted the High Court is no longer a party to the exchange of information process due to amendments in the ITA. The Comptroller is now empowered to issue a statutory notice to compel the production of information, even if it is protected from unauthorised disclosure by the Banking Act or the Trust Companies Act.
This represents a further liberalisaiton in the exchange of information between national tax authorities to facilitate international cooperation for tax investigations.

 

Rajah & Tann

 

For further information, please contact:

 

Vikna Rajah, Partner, Rajah & Tann
vikna.rajah@rajahtann.com

 

Rajah & Tann Tax Practice Profile in Singapore

 

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