The Ministry of Finance (“MOF”) has issued a public consultation on the proposed amendments to the Income Tax Act (“Act”). These proposed legislative changes follow up on a joint announcement in May 2013 made by MOF, the Monetary Authority of Singapore and the Inland Revenue Authority of Singapore (“IRAS”), on the measures that Singapore will be making to its Exchange of Information (“EOI”) regime to strengthen its framework for international tax cooperation to combat cross-border tax offences.
The closing date for feedback on the public consultation is 31 July 2013.
PROPOSED KEY AMENDMENTS TO THE ACT
Extending EOI assistance in accordance with the internationally agreed Standard to Singapore’s existing tax agreement partners
MOF will extend EOI assistance (in accordance with the internationally agreed standard for EOI for tax purposes (“EOI Standard”)), to all of Singapore’s existing tax agreement partners without having to individually update each bilateral tax agreement. This will be done by lifting the domestic interest requirement for EOI assistance and statutory confidentiality provisions under the Banking Act and the Trust Companies Act, instead of revising the individual tax agreements.
However, EOI assistance will continue to be subject to reciprocity, and the regime will be administered by IRAS and other competent authorities of the relevant tax agreements.
Currently, Part XXA of the Act, which sets out the rules under which Singapore will render EOI assistance, is applicable only to prescribed arrangements and each of these must be specifically subject to a Ministerial Declaration under section 105C. Thus, each time a tax agreement is updated, a Ministerial Declaration has to be gazetted so that it comes under Part XXA. The proposal is to change the definition of prescribed arrangement to refer to all tax agreements that contain an EOI provision or an EOI arrangement, without the need for a further Ministerial Declaration.
To make clear that the lack of domestic interest and confidentiality rules are not grounds to refuse EOI, a new subsection 105D(4) will provide that a prescribed arrangement is not to be construed in such a way as to prevent IRAS from complying with an EOI request, merely because Singapore does not need the information for its own purposes, or that the information is held by, among others, a bank or other financial institution.
Allowing IRAS to obtain bank and trust information from financial institutions without having to seek a Court Order
Another proposed amendment will allow IRAS to obtain information otherwise protected by banking secrecy, for the purposes of rendering EOI assistance, without having to seek a Court Order.
The current Part XXB of the Act, which establishes REFERENCES the sub-regime for IRAS to apply for Court Orders to obtain information protected by banking secrecy, for the purpose of rendering EOI assistance, will be repealed. This will be replaced by a new Part XXB and a new Part XXC. The new Part XXB will be discussed below. The new Part XXC replaces the current Part XXB and provides for a more explicit override of banking secrecy, on the basis only of IRAS issuing a notice under section 65B of the Act without the need for IRAS to apply for a Court Order. Section 65B of the Act is the provision empowering IRAS to obtain information. It will be made clear by the new sections 105F and 105N that the powers of IRAS under section 65B will be available not just for domestic investigations, but also for the purposes of EOI assistance.
Giving effect to the Singapore-US Foreign Account Tax Compliance Act Inter-Governmental Agreement
The Act will also be amended to insert a new Part
XXB to implement Singapore’s obligations under international tax compliance agreements more generally. This will cover arrangements that may not fall squarely under EOI arrangements. One of the agreements specifically contemplated to come under this new sub-regime will be the InterGovernmental Agreement between Singapore and the US for implementation of the US Foreign Account Tax Compliance Act.
The proposed amendments are part of the
progressive steps Singapore is taking to enhance its EOI framework, since it endorsed the EOI Standard originally developed and propagated by the member states of the Organisation for Economic and Co-operation and Development in 2009.
The proposed amendments to the Act are just a first step, and it is expected that more details on the reformed EOI regime will be contained in additional subsidiary legislation to be made by IRAS once the proposed amendments are finalised into a Bill and adopted by Parliament.
Please click on the following links to access the documents.