Jersey: Update: Jersey’s First Challenge Against Disclosure Under A Tax Information Exchange Agreement

Last Updated: 16 February 2014
Article by David Dorgan


The Court of Appeal has dismissed the appeal and confirmed the requirement upon the appellant, Volaw Trust, to disclose the requested information to a foreign tax authority pursuant to regulation 3 of the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 ("ReguIations"),.


In 2010, the Jersey Comptroller of Taxes ("Comptroller"), having received a request for information from foreign authorities pursuant to a Tax Information Exchange Agreement ("TIEA"), issued a formal notice to Volaw Trust requiring it, pursuant to the Regulations, to furnish "all information, documents, correspondence, financial statements, files and details of any other information concerned with or connected to the named subjects" (being an individual and four companies).

Volaw appealed the Comptroller's decision to the Royal Court of Jersey which, in May 2013, dismissed the appeal, but gave permission for Volaw to appeal the matter to the Court of Appeal. Until such appeal was heard, the Royal Court stayed enforcement against Volaw of the requirement to provide the foreign tax authority with the requested information.


The grounds for appeal were substantially the same as heard before the Royal Court. The Court of Appeal dismissed the appeals upholding the decision of the Royal Court and, consequently, confirmed Volaw was to produce the information required of it pursuant to the formal notice from the Comptroller. However, the Court of Appeal did say that the information was to be made available by Volaw to the foreign tax authority to afford it with assistance in connection with the potential tax liability of only the individual concerned, and not (in connection with) any of the Jersey companies named in the notice.


However, it is worth noting two further related judgments of the Court of Appeal ([2013]JCA26O and [2013]JCA261) regarding a possible appeal by Volaw to the Privy Council. The Court of Appeal refused permission to appeal, but Volaw may also seek permission to appeal directly from the Privy Council. If such permission is granted, the enforcement of the Comptroller's notice against Volaw will, again, be stayed until the Privy Council reaches its judgment. If the Privy Council refuses permission to appeal, the notice against Volaw will come into effect and it will be required to disclose accordingly.


Due to recent events involving a separate, and unrelated, request for information by the French Authorities, which resulted in Jersey being blacklisted by the French Government, the Regulations have been amended.

Threshold Test: Since the Royal Court's appeal, the subsequently amended Regulations now provide that the Comptroller is no longer required to decide if it is "reasonable" to respond to a request from foreign authorities. That (now removed) "Reasonableness" test required the Comptroller to form an objective state of mind, below certainty, but above suspicion, that an "overseas tax default" had been committed. The change now requires the Comptroller simply to "decide" whether to respond to a request. Therefore, provided the Comptroller acts reasonably as a third party would in his position, the Comptroller is no longer restricted in how he makes decisions. Consequently, the Comptroller has greater scope than previously as to whether issue a notice under the regulations.

Appeal Provisions Changed: The Regulations did not specify the nature and scope (or grounds) upon which the Royal Court may allow an appeal from a decision of the Comptroller. Consequently, in the case of Volaw, the Court of Appeal found that the Royal Court was entitled to consider afresh, rather than review, whether the Comptroller properly issued notice to disclose information. However, since the Royal Court's appeal, the Regulations now provide analysis that the Comptroller's decision is only subject to judicial review (i.e. a "check" and balances of the Comptroller's decision rather than an appeal) with, thereafter, an appeal from the Royal Court direct to Privy Council. The latter appeal is very unlikely in the normal course of events.


In this instance, it is the changes to the Regulations, rather than the judgment of the Court of Appeal, which should be noted. Our view is that the Comptroller has been granted more unilateral power with his decision making, and those decisions are now only subject to review in the first instance, rather than appeal.

Consequently, trust companies receiving a notice from the Comptroller to disclose information to foreign authorities should note that disclosure is no longer conditional upon circumstances as to whether reasonable grounds exist and whether the Comptroller can form a reasonable opinion that disclosure is relevant. Furthermore, whilst a judicial review of the Comptroller's decision exists, the grounds for success at judicial review are limited: i.e. there must be one of illegality, unreasonableness or procedural impropriety in the Comptroller's decision. Unreasonableness in this context is not the same as requiring the Comptroller to form a reasonable opinion that disclose is relevant, rather, that his overall conduct is reasonable in the circumstances. It would be unlikely, in the norm, that the Comptroller would form a decision which fell due to illegality, unreasonableness or procedural impropriety.

Therefore, the changes are designed to restrict a person's ability to appeal a notice from the Comptroller and, therefore, it would seem sensible to assume that further challenges against disclosures to foreign authorities will be infrequent for lack of grounds on which to do so. Hence, the changes protect and augment international transparency, being the intention of the TEIAs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.