Volaw Trust & Corporate Services Limited And Mr Berge Gerdt Larsen, v The Office Of The Comptroller Of Taxes [2013] JCA 239

This was an appeal to the Court of Appeal from the decision of the Royal Court of Jersey, by which the Royal Court dismissed an appeal brought under Article 14(1)(c) of the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 (the "Regulations") and upheld the decision of the Comptroller of Taxes (the "Comptroller") to issue a notice dated 28 May 2012 (the "Notice") on Volaw Trust & Corporate Services Limited ("Volaw"). The Court of Appeal recognised that "underlying the dispute is the tension between the private interest in commercial confidentiality and the public interest in international co-operation in the investigation of potential tax evasion".

Facts

The Notice was issued in response to a request for information from the Norwegian Tax Authority (the "NTA") pursuant to an agreement between Jersey and Norway for the exchange of information relating to tax matters, which came into force on 7 October 2009 (the "TIEA"). The Notice required the production of certain documents held by Volaw said to be relevant to the tax affairs of Mr Berge Gerdt Larsen ("Mr Larsen"), a Norwegian citizen, for the period from 1 January 1996 to 31 December 2008.

The Appellants' key grounds of appeal can be summarised as follows:

the Royal Court erred in construing the Regulations as retrospectively changing the law with regard to the disclosure of documents created before the TIEA came into force, and therefore documents pre-dating 7 October 2009 cannot be obtained (the "Retrospectivity Issue"; the Royal Court erred in failing to address the question as to whether there were "reasonable grounds" for suspecting that Mr Larsen was liable to income tax (the "Reasonable Grounds Issue"); the Royal Court failed to have sufficient regard to the Appellants' rights under Article 8 of the European Convention on Human Rights (the "Forseeability Issue"); and the Royal Court erred in holding that when information was provided on the basis that it was in respect of a "criminal tax matter" it could be used for civil tax purposes (the "Use Issue"). Law

The Court of Appeal's decision turned on the construction of the TIEA and the Regulations.

The TIEA

Article 1 of the TIEA sets out its scope and provides that:

"The Parties shall provide assistance through exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Parties concerning the taxes covered by this Agreement, including...