PARLIAMENT REPUBLIC OF TRINIDAD AND TOBAGO (ELEVENTH PARLIAMENT- SECOND SESSION 2016/2017) REPORT OF THE JOINT SELECT COMMITTEE ON THE TAX INFORMATION EXCHANGE AGREEMENTS BILL, 2016 Ordered to be printed TOGETHER WITH THE MINUTES OF PROCEEDINGS PARL: 14/3/68 PAPER NO: 01/2017 Contents THE COMMITTEE .................................................................................................. 3 APPOINTMENT .............................................................................................................................................. 3 MEMBERSHIP ................................................................................................................................................ 3 SECRETARIAT ................................................................................................................................................. 3 CHAIRMANSHIP ............................................................................................................................................. 3 MEETINGS ..................................................................................................................................................... 4 CONSIDERATION OF THE BILL ........................................................................ 4 APPROACH TO DELIBERATIONS .................................................................................................................... 4 WITNESSES .................................................................................................................................................... 5 WRITTEN SUBMISSIONS ................................................................................................................................ 5 REPORT .................................................................................................................... 5 RECOMMENDATIONS ......................................................................................... 6 Appendix 1 ............................................................................................................... 7 Appendix 2 .............................................................................................................26 Appendix 3 ...........................................................................................................152 2 THE COMMITTEE APPOINTMENT 1.1 Pursuant to resolutions of the House of Representatives on January 6, 2017 and of the Senate on January 11, 2017, a Joint Select Committee was established to consider and report on the Tax Information Exchange Agreements Bill, 2016 by February 3, 2017. MEMBERSHIP 1.2 The following persons were appointed to serve on the Committee:  Mr. Colm Imbert, MP  Mr. Faris Al-Rawi, MP  Mr. Stuart Young, MP  Ms. Marlene McDonald, MP  Dr. Tim Gopeesingh, MP  Dr. Bhoendradatt Tewarie, MP  Mrs. Paula Gopee-Scoon  Mr. Clarence Rambharat  Mr. Michael Coppin  Mr. Gerald Ramdeen  Mr. H.R. Ian Roach  Mr. Taurel Shrikissoon SECRETARIAT 1.3 Procedural and Legal support to the Committee was provided by: o Ms. Keiba Jacob - Secretary o Mrs. Angelique Massiah - Assistant Secretary o Ms. Simone Yallery - Legal Officer CHAIRMANSHIP 1.4 At its first meeting on Friday January 13, 2017 the Committee elected Mr. Colm Imbert to be its Chair. 3 MEETINGS 1.5 The Committee held five meetings on the following dates: 1. Friday January 13, 2017; 2. Tuesday January 17, 2017; 3. Friday January 20, 2017; 4. Friday January 27, 2017; and 5. Wednesday February 1, 2017. 1.6 At its fifth meeting, the Committee agreed that the Draft Report would be circulated for round-robin agreement. 1.7 The Minutes of the meetings are attached at Appendix 3. CONSIDERATION OF THE BILL APPROACH TO DELIBERATIONS 2.1 At its second meeting, the Committee agreed to the approach that would be taken in consideration of the Bill. 2.2 The Committee obtained technical assistance from the Legislative Drafting Team. The following persons comprised the Technical Team during the consideration of the Bill: CHIEF PARLIAMENTARY COUNSEL’S DEPARTMENT Ms. Ida Mariana Eversley Deputy Chief Parliamentary Counsel Ms. Donna Marie Neaves-Rostant Legal Counsel II Ms. Paula Hender Legal Counsel I OFFICE OF THE ATTORNEY GENERAL Mrs. Vyana Sharma Legal Counsel II 4 MINISTRY OF FINANCE Ms. Nnika Watson Senior Legal Officer WITNESSES 2.3 At its third meeting, the Committee agreed to invite the following key stakeholders to share their main comments on the Bill:  Board of Inland Revenue  Bankers Association of Trinidad and Tobago;  Co-operative Credit Union League of Trinidad and Tobago;  Central Bank of Trinidad and Tobago; and  Securities and Exchange Commission. WRITTEN SUBMISSIONS 2.4 At its third meeting, the Committee agreed that written comments on the Bill would be requested from the following:  Trinidad and Tobago Chamber of Industry and Commerce;  Law Association of Trinidad and Tobago;  American Chamber of Commerce Trinidad and Tobago; and  Faculty of Law, University of the West Indies, St. Augustine. REPORT 3.1 In accordance with Standing Orders 114(1) and 104(1) of the House of Representatives and the Senate, respectively, the Committee wishes to report that it has completed its mandate within the required deadline. 5 RECOMMENDATIONS 4.1 The Committee respectfully submits for the consideration and adoption of the Parliament, the list of amendments to the Tax Information Exchange Agreements Bill, 2016, as attached at Appendix 1. 4.2 For ease of consideration a version of the Tax Information Exchange Agreements Bill, 2016 inclusive of the recommended amendments is attached at Appendix 2. Respectfully submitted, Sgd. Mr. Colm Imbert, MP Chairman February 3, 2017 6 Appendix 1 LIST OF RECOMMENDED AMENDMENTS 7 LIST OF RECOMMENDED AMENDMENTS TO THE TAX INFORMATION EXCHANGE AGREEMENTS BILL, 2016 First Column Second Column Clause Extent of Amendment Long title A. Delete the words “new” B. Delete the words “other States” and replace with the words “United States of America”. Preamble Delete the Preamble and replace with the following: “Whereas Trinidad and Tobago entered into a Tax Information Exchange Agreement with the United States of America on 11th January, 1989 (“the 1989 TIEA”): And whereas the Tax Information Exchange Agreements Act (“the Act”) was enacted in 1989 for the implementation of agreements between Trinidad and Tobago and other States providing for the exchange of information for purposes of taxation including the 1989 TIEA: And whereas the Act provides for the sharing of personal information of identifiable individuals without first obtaining consent for such sharing: And whereas the sharing of personal information of identifiable individuals without first obtaining consent for such sharing amounts to a breach of that person’s right to his family and private life as guaranteed by section 4 of the Republican Constitution: And whereas the Republican Constitution by section 5 provides that no law may abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement of any of the rights contained in section 4 of the Republican Constitution: And whereas section 13 requires any Act which seeks to abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement may have effect even though inconsistent with the Constitution if the Bill relative to the Act expressly states that it is inconsistent with sections 4 and 5 of the Constitution and is passed by both Houses of Parliament with a vote of not less than three-fifths of all the members of Parliament: 8 And whereas the Act was passed in both Houses of Parliament with a simple majority and did not expressly state that it was inconsistent with sections 4 and 5 of the Constitution: And whereas personal information in the possession of the Board of Inland Revenue has been shared with the Secretary of the Treasury under the 1989 TIEA without the consent of the person to whom the information relates: And whereas it has become necessary to validate the actions of the Board of Inland Revenue in this regard: And whereas the Inter-Governmental Agreement (“IGA”) is a response to the enactment by the United States of America of an Act commonly known as “the Foreign Account Tax Compliance Act” (FATCA) which introduced a reporting regime for financial institutions with respect to certain accounts held by such financial institutions: And whereas the Government of Trinidad and Tobago now intends to give effect to its obligations under the IGA: And whereas the IGA provides for the sharing of personal information from an identifiable person without first obtaining consent which may amount to a breach of a person’s right to his family and private life as guaranteed by section 4 of the Republican Constitution: And whereas it is enacted inter alia by subsection (1) of section 13 of the Constitution that an Act of Parliament to which that section applies may expressly declare that it shall have effect even through inconsistent with sections 4 and 5 of the Constitution and, if any such Act does so declare, it shall have effect accordingly: And whereas it is provided by subsection (2) of the said section 13 of the Constitution that an Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the vote of not less than three-fifths of all members of that House: And whereas it is necessary and expedient that the provisions of the Act shall have effect even though inconsistent with sections 4 and 5 of the Constitution:” Short title Insert after the word “Agreements” the words “(United States of America)”. 9 Insert new Insert after clause 1 the following new clause: clause 2 “Commencemen 2. This Act comes into operation on t such date as is fixed by the President by Proclamation.”. Renumber Renumber existing clauses 2 and 3 as clauses 3 and 4. existing clause 2 and 3 Clause 3 as Insert after the word “Act” the words, “shall have effect even though it”. renumbered Clause 4 as A. Renumber 4 (1) as 4. renumbered (i) delete definition of “competent authority” and “Contracting State”; (ii) delete the definition of “declared agreement” and replace with the following new definition: “ “declared agreement” means the 1989 TIEA as defined in section 5 and the IGA as defined in section 9;”; (iii) in the definition of “former Act” – (aa) insert after the word “Tax” the word “Information”; (ab) delete the words “76:61”; and (iv) in the definition of “Minister”, delete the words “member of Parliament” and replace with the word “Minister”; (v) delete the definition of “tax information exchange agreement”; and (vi) delete the definition of Board. B. Delete subclause (2). Original Delete. clause 4 PART II Delete Heading “Part II Tax Information Exchange Agreements”. Clause 5, 6, 7 Delete. and 8 10