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Executive summary

On 13 January 2023, the Spanish Ministry of Finance published a draft Ministerial Order,¹ which sets forth a new list of countries, territories and harmful tax regimes that would be considered as non-cooperative jurisdictions for tax purposes, in accordance with the reform introduced by the Anti-Tax Fraud Law in 2021.²

The proposed list consists of 24 jurisdictions, 10 of which correspond to the countries and territories listed on the European Union (EU) List of Non-Cooperative Tax Jurisdictions (last updated on 4 October 2022). Notwithstanding, the Spanish list does not include jurisdictions such as the Bahamas and Panama, which appear in the aforementioned "EU blacklist," while it includes three jurisdictions listed on the "EU grey list" (Barbados, Dominica, Seychelles). Furthermore, the list includes two jurisdictions (Barbados, Trinidad and Tobago) that have a tax treaty in force with Spain.

This list is a draft, subject to a public consultation procedure, to be concluded by 23 January 2023.

Detailed discussion

Background

The Spanish Anti-Tax Fraud Law introduced very significant changes to the Spanish list of tax haven jurisdictions (See EY Global Tax Alert, Spain approves Anti-Tax Fraud Law, dated 16 July 2021).

In particular, the term “tax haven” was replaced by “non-cooperative jurisdiction,” and was broadened to include not only States and territories, but also preferential tax regimes. For this purpose, the criteria to identify such non-cooperative jurisdictions were also expanded. However, the “blacklisted” jurisdictions remained the same until publication of a new list, to be prepared taking into account these new criteria.

As a result of these legislative changes, the Spanish Ministry of Finance has issued a proposed list of non-cooperative jurisdictions. The approval of this Order will determine the application to those jurisdictions of the anti-tax haven measures set forth in various tax laws and applicable with respect to the former list of "tax havens" (now called "non-cooperative jurisdictions for tax purposes"). This new list will also be relevant for other formal obligations, such as DAC6 reporting.

List of countries, territories, and harmful tax regimes

The following countries and territories, as well as the following harmful tax regimes, have been included in the proposed list:

While this list is generally aligned with the EU and Organisation for Economic Co-operation and Development (OECD) lists, there are also certain deviations from them, since the Spanish list does not include Bahamas and Panama, which are included on the “EU blacklist” and does include Barbados, Dominica, and Seychelles, which are listed on the "EU grey list."

There are several jurisdictions included in the proposed Spanish list, with which Spain has concluded a tax treaty to avoid double taxation (e.g., Barbados, Trinidad and Tobago). In this regard, the Anti-Tax Fraud Law provides that in these cases the provisions of the tax treaty will prevail over the application of domestic anti non-cooperative jurisdiction measures, so that the non-discrimination clause will be relevant for these purposes.

It is important to note that Spain and the United Kingdom also concluded a tax cooperation agreement on 13 March 2021, which has not served to exclude Gibraltar from the Spanish list, as confirmed by the Spanish tax authorities.

Future actions and application

Considering the above, the draft list raises some significant uncertainties. In particular, the reference to the original Spanish tax haven list (issued in 1991) does not seem to take into consideration the rules under which a significant number of territories have exited the list when they entered into a tax treaty or exchange of information agreement with Spain. There is no guidance on how this new list will impact such jurisdictions, which currently have a tax treaty and/or an exchange of information agreement in place with Spain and whether they will be excluded once approved, for example, Barbados.

If the Order is finally approved, it will enter into force on the day following its publication in the Spanish Official Gazette and it will be applicable for tax periods that start after that date (or for accruals after that date for taxes without a tax period).

Notwithstanding, for countries or territories included on the new list that were not included on the original Spanish tax haven list, the entry into force will be delayed to six months after the day following its publication in the Official Gazette.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young Abogados, Madrid

• Tatiana de Cubas Buenaventura | tatianade.cubasbuenaventura@es.ey.com

• Isabel Hidalgo Galache | isabel.hidalgogalache@es.ey.com

Ernst & Young LLP, Spanish Tax Desk, New York

• Jose A. (Jano) Bustos | joseantonio.bustos@ey.com

• Andrés Carracedo | andres.carracedo.insua1@ey.com

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Endnotes

1. Order HPF/XXX/2023.

2. Law 11/2021, of 9 July, on measures to prevent and combat tax fraud (transposing Council Directive (EU) 2016/1164, of 12 July 2016, setting forth rules against tax avoidance practices having a direct incidence on the functioning of the internal market, amending various tax rules and in the field of gambling regulation).

3. In respect to the harmful tax regime (offshore business).