Macau - Fiscal Information Exchange – Update And Enlargement.
Legal News & Analysis - Asia Pacific - Macau - Offshore
15 December, 2017
On May 31 2017 the Legislative Assembly approved the legal framework for the exchange of fiscal information in order to align Macau with G20 and EU standards. The framework entered into force on June 13 2017.
Article 22 of Law 5/2017 expressly revokes Law 20/2009 and has standardised the exchange of fiscal information within the countries which are parties to the international conventions and treaties to which Macau is also a party. The law therefore aims to avoid double taxation and tax evasion.
One of the innovations of Law 5/2017 is the listing of three separate procedures with the purpose of exchanging any pertinent fiscal information:
- exchange of information on request of one of the parties to the international conventions and treaties, which shall be understood as the exchange of information when another contracting country requests such information;
- automatic exchange of information when Macau and another contracting country establish a certain periodicity to exchange information, without specific prior request; and
- spontaneous exchange of information which comprises an exchange of information between the contracting parties without any request for such information.
Exchange of information on request
The exchange of information on request is applicable to all the individuals and companies in relation to which the request grounds are the fulfillment of the internal laws of the requesting country.
This type of request can be used for the exchange of:
- Finance Department Bureau information relating to its tax management attributions, including information collected through inspections; and
- other government department information, including identification of corporate members, accounting and documentation relating to the companies and any other information presumed important for exchange.
In this last case, the law does not stipulate what must be understood by 'presumed important for exchange'. In addition, offshore companies are one of the specific issues dealt with in this chapter of the law.
The exchange of information on request is subject to the reciprocity principle (ie, Macau will satisfy requests made only by countries which admit requests made by Macau under the same conditions). The reciprocity principle is found in Article 6 of Law 5/2017 and is not an update to the law, since this stipulation was already included in repealed Law 20/2009.
The chief executive of Macau is the competent authority to submit and receive the requests and make the decision to provide the information or deny the request.
Automatic exchange of information
This model of exchange is applicable to offshore financial institutions that have activity with and keep information about the finance accounts of other contracting countries' residents. In this particular case, Law 5/2017 states that the chief executive of Macau can set a "common reporting standard and due diligence procedures" in order to standardise all the information that must be provided.
According to Law 5/2017, the Macau Finance Bureau is the government department responsible for the collection and transmission of such information.
Spontaneous exchange of information
Macau can send information (without request) to other contracting countries in the following cases:
- if there are any reasons to presume that the other contracting parties will have a fiscal loss;
- if the taxpayer was subject to any reduction or exemption in Macau and subsequently had an increase to its fiscal obligations in another country;
- if commercial business between Macau taxpayers and other countries' taxpayers may affect more than one country; and
- if there are any suspicious transfers of profits within groups of companies with the scope of reducing the payment of taxes.
Decisions regarding the spontaneous exchange of information are the competence of the chief executive of Macau.
Regarding personal data matters, Law 5/2017 allows the disclosure of all of the information of individuals and companies, without limitation. According to Article 18 of the law, government departments are exempt from the obligation to inform the holder of the personal data.
The only way to react against the exchange of fiscal information is through an administrative appeal, which must be filed with the Macau Administrative Court, with suspension effects.
This update was first published in the International Law Office Offshore Services Newsletter – www.internationallawoffice.com.
Pedro Cortés, Partner, Rato, Ling, Lei & Cortes - Advogados