Bunge Ltd v The Minister of Finance

• Jurisdiction: Bermuda
• Judgment Date: 13 March 2013
• Date: 13 March 2013
• Docket Number: Civil Jurisdiction 2012 No 472
• Court: Supreme Court (Bermuda)

2013 Bda LR 17

In The Supreme Court of Bermuda

Civil Jurisdiction 2012 No 472

In the matter of an Application for Judicial Review

And in the matter of a Notice to Deliver Up Information dated 29th November 2012, pursuant to a Tax Information Exchange Agreement between the Republic of Argentina and Bermuda

Between:

Bunge Limited

Applicant

and

The Minister of Finance

Respondent

Mr J Elkinson and Mr P Smith for the Applicant

Ms S Dill for the Respondent

The following cases were referred to in the judgment:

Lewis & Ness v Minister of FinanceBDLR [2004] Bda LR 66

Coxon v Minister of FinanceBDLR [2007] Bda LR 78

R v LyonsELR [2003] 1 AC 976

Crown Forest Industries Ltd v CanadaUNK [1995] 2 SCR 802, 125 DLR (4th) 485

JN Gladden Estate v R [1985] 1 CTC 163

Pacific Network Services Ltd v Minister of National Revenue 2002 FCT 1158

Liversidge v AndersonELR [1942] AC 206

Judicial review — Validity of tax information request — Comparison of 2005 and 1986 Acts — Confidentiality

EX TEMPORE JUDGMENT of Hellman J

Introduction

1. By a notice of motion dated 17^th January 2013, the Applicant, Bunge Limited, seeks judicial review of the decision of the Respondent, the Minister of Finance, to issue a notice to deliver up information dated 29^th November 2012 (‘the Notice’). The Notice was issued pursuant to a request from the Government of Argentina (‘the Request’) under an Agreement between Bermuda and the Argentine Republic for the Exchange of Information Relating to Taxes dated 22^nd August 2011 (‘the Agreement’). The Applicant contends that the Request was invalid.

2. Leave to apply for judicial review was granted on 21^st December 2012. The relief sought includes an order for mandamus to compel the production of the Request and an order for certiorari to quash the Notice. The production of the Request is sought so that the Applicant can better assess whether it complies with the requirements for a request that are set out in the Agreement.

3. This is a judgment on the application for mandamus. On 17^th January 2013 the Court ordered that the application should be heard and determined separately, before the application for certiorari is heard.

Statutory framework

The International Co-operation (Tax Information Exchange Agreements) Act 2005 (‘the 2005 Act’)

4. The statutory authority to issue a request under the Agreement is to be found in the 2005 Act.

i. Section 2 of the 2005 Act is headed ‘Interpretation’. It provides in material part:

‘In this Act, unless the context otherwise requires —

“agreement” means a tax information exchange agreement … entered into by the Government of Bermuda, as authorized by the Government of the United Kingdom, with another jurisdiction; but does not include —

…

(b) the Agreement between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (on behalf of the Government of Bermuda) for the Exchange of Information with Respect to Taxes;

…

“Minister” means the Minister of Finance or such other Minister as may be appointed to administer this Act;

“requesting party” means a party that makes a request for assistance under an agreement.’

ii. Section 3 of the 2005 Act is headed ‘Duties of the Minister’. It provides:

‘(1) The Minister is the competent authority for Bermuda under the agreements.

(2) The Minister may provide assistance to any requesting party according to the terms of the agreement with that party.’

iii. Section 5 of the 2005 Act is headed ‘Power to require information’. It provides:

‘(1) The Minister may, by notice in writing served on any person in Bermuda, require the person to provide any information that the Minister may require with respect to a request for assistance by a requesting party.’

iv. Section 8A of the 2005 Act provides:

‘Nothing in this Act shall preclude the right of any person to apply for judicial review of any matter undertaken pursuant to this Act.’

5. Article 5 of the Agreement is headed ‘Exchange of Information upon Request’. It deals with the information to be contained in a request:

i. Paragraph 1 provides:

‘The competent authority of a requested party shall provide upon request in writing by the requesting party information for the purposes referred to in Article 1’.

ii. Paragraph 6 provides:

‘The competent authority of the requesting party shall provide the following information to the competent authority of the requested party when making a request for information under this Agreement in order to demonstrate the relevance of the information to the request:

• (a) the identity of the person under examination or investigation;

• (b) the period for which the information is requested;

• (c) the nature and type of the information requested, including a description of the specific evidence sought and the form in which the requesting party would prefer to receive the information;

• (d) the tax purposes for which the information is sought and the reasons for believing that the information requested is relevant to the administration or enforcement of the domestic laws of the requesting party;

• (e) reasonable grounds for believing that the information requested is present in the territory of the requested party or is in the possession or control of a person subject to the jurisdiction of the requested party;

• (f) to the extent known, the name and address of any person believed to be in possession or control of the information requested;

• (g) a statement that the request is in conformity with this Agreement and the laws and administrative practise of the requesting party, and that if the requested information were within the jurisdiction of the requesting party then the competent authority of the requesting party would be able to obtain the information under the laws of the requesting party or in the normal course of administrative practice;

• (h) a statement that the requesting territory has pursued all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.’

6. Article 7 of the Agreement is headed ‘Possibility of Declining a Request’. Paragraph 1 provides in material part:

‘The competent authority of the requested party may decline to assist:

(a) where the request is not made in conformity with this Agreement.’

7. Article 8 of the Agreement is headed ‘Confidentiality’. Paragraph 1 provides:

‘All information provided and received by the competent authorities of the contracting parties shall be kept confidential, in the same conditions as that obtained under its domestic laws or according to the confidentiality conditions applicable in the jurisdiction of the Party that provides such information if the second-mentioned conditions are more restrictive and shall be disclosed only to persons or authorities (including courts and administrative bodies) officially concerned with the purposes specified in Article 1 and used by such persons or authorities only for such purposes, including the determination of any appeal, or the oversight of the above. For these purposes, information may be disclosed in public court proceedings or in judicial proceedings.’

The USA —Bermuda Tax Convention Act 1986 (‘the 1986 Act’)

8. There is no authority to date on the production of a Notice to Produce under the 2005 Act. However there is authority on this question under the 1986 Act. This Act provides authority for the Minister to issue requests under the Convention between the Government of the United Kingdom of Great Britain and Northern Ireland (on Behalf of the Government of Bermuda) and the Government of the United States of America Relating to the Taxation of Insurance Enterprises and Mutual Assistance in Tax Matters 1986 (‘the Convention’).

9. The Applicant relies on one such authority: Lewis & Ness v Minister of FinanceBDLR[2004] Bda LR 66, which was a decision of the Court of Appeal. It is necessary to consider the scheme of the 1986 Act in order to determine whether and to what extent Lewis & Ness is of assistance with respect to a request under the 2005 Act.

i. Section 2 of the 1986 Act is headed ‘Interpretation’...