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
Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions