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Executive summary

On 9 February 2023, the Spanish Ministry of Finance published a Ministerial Order,¹ which sets forth a new list of countries, territories and harmful tax regimes that will 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 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 14 February 2023 — see EY Global Tax Alert, ECOFIN adopts revised list of non-cooperative jurisdictions for tax purposes, dated 15 February 2023). Notwithstanding, the Spanish list does not include jurisdictions which appear on the so-called "EU blacklist," while it includes jurisdictions listed on the "EU grey list'" Furthermore, the Spanish list includes two jurisdictions (Barbados, Trinidad and Tobago) that have a tax treaty in force with Spain.

This list is final and applicable as follows:

• As of 11 February 2023 with respect to taxes without an accrual period (e.g., nonresident income tax).
• For taxable years starting on or after 11 February 2023 with respect to taxes with an accrual period (e.g., Corporate Income Tax).

However, for any new non-cooperative jurisdictions not previously listed in the original Spanish list, the effects from their inclusion on the list will be postponed for a six-month period from the above referred dates.

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 published a list of non-cooperative jurisdictions. This new list 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"). 

List of countries, territories and harmful tax regimes

The following countries and territories, as well as the following harmful tax regimes, have been included on the 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. Specifically, the Spanish list:

• Does not include the Bahamas, Costa Rica, Marshall Islands, Panama, and Russia, which are included on the EU list, Annex I.
• Does include Dominica and Seychelles, which are listed on the EU list, Annex II.

As noted, there are two jurisdictions included on the Spanish list, with which Spain has concluded a tax treaty to avoid double taxation (e.g., Barbados, Trinidad and Tobago). For these countries, the Anti-Tax Fraud Law provides that 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 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 were removed from 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, for example, Barbados.

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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 HFP/115/2023.

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).