Overall findings
New Caledonia’s legal framework implementing the AEOI Standard is in place but needs improvement in order to be fully consistent with the requirements of the AEOI Terms of Reference. While New Caledonia’s international legal framework to exchange the information with all New Caledonia’s Interested Appropriate Partners (CR2) is consistent with the requirements, its domestic legislative framework requiring Reporting Financial Institutions to conduct the due diligence and reporting procedures (CR1) has deficiencies significant to the proper functioning of elements of the AEOI Standard. More specifically, deficiencies have been identified in relation to New Caledonia’s enforcement framework.
The methodology used for the peer reviews and that therefore underpins this report is outlined in Chapter 2.
Overall determination on the legal framework: In Place But Needs Improvement
Conclusions on the legal framework
General context
New Caledonia commenced exchanges under the AEOI Standard in 2020.
In order to provide for Reporting Financial Institutions to collect and report the information to be exchanged, New Caledonia:
enacted Code des impôts de la Nouvelle-Calédonie Article Lp. 920.9 ; Arrêté n° 2018-3179 du 26 décembre 2018 fixant les règles et procédures concernant l'échange automatique de renseignements relatifs aux comptes financiers, dites « norme commune de déclaration;
introduced the Arrêté n° 2018-3181 du 26 décembre 2018 précisant les règles et procédures concernant l'échange automatique de renseignements relatifs aux comptes financiers, dites « norme commune de déclaration;
made reference to the Code monetaire et financier for the purposes of the identification of Controlling Persons under the AEOI Standard; and
issued further guidance, which is legally binding.
Under this framework Reporting Financial Institutions were required to commence the due diligence procedures in relation to New Accounts from 1 January 2019. With respect to Preexisting Accounts, Reporting Financial Institutions were required to complete the due diligence procedures on High Value Individual Accounts by 31 December 2019 and on Lower Value Individual Accounts and Entity Accounts by 31 December 2020.
With respect to the exchange of the information under the AEOI Standard, New Caledonia has the Convention on Mutual Administrative Assistance in Tax Matters in place1 and activated the associated CRS Multilateral Competent Authority Agreement in time for exchanges in 2020.
Detailed findings
The detailed findings for New Caledonia are below, organised per Core Requirement (CR) and sub-requirement (SR), as extracted from the AEOI Terms of Reference (see Annex B).
CR1 Domestic legal framework: Jurisdictions should have a domestic legislative framework in place that requires all Reporting Financial Institutions to conduct the due diligence and reporting procedures in the CRS, and that provides for the effective implementation of the CRS as set out therein.
Determination: In Place But Needs Improvement
New Caledonia’s domestic legislative framework is in place and contains most of the key aspects of the CRS and its Commentary requiring Reporting Financial Institutions to conduct the due diligence and reporting procedures, but it needs improvement in relation to the framework to enforce the requirements (SR 1.4). More specifically, New Caledonia’s legislative framework for sanctioning due diligence and record keeping failures and providing authorities access to such records relevant to the AEOI Standard does not fully cover all Reporting Financial Institutions.
SR 1.1 Jurisdictions should define the scope of Reporting Financial Institutions consistently with the CRS.
New Caledonia has defined the scope of Reporting Financial Institutions in its domestic legislative framework in accordance with the CRS and its Commentary.
Recommendations:
No recommendations made.
SR 1.2 Jurisdictions should define the scope of Financial Accounts and Reportable Accounts consistently with the CRS and incorporate the due diligence procedures to identify them.
New Caledonia has defined the scope of the Financial Accounts that are required to be reported in its domestic legislative framework and incorporated the due diligence procedures that must be applied to identify them in accordance with the CRS and its Commentary.
Recommendations:
No recommendations made.
SR 1.3 Jurisdictions should incorporate the reporting requirements contained in Section I of the CRS into their domestic legislative framework.
New Caledonia has incorporated the reporting requirements in its domestic legislative framework in accordance with the CRS and its Commentary.
Recommendations:
No recommendations made.
SR 1.4 Jurisdictions should have a legislative framework in place that allows for the enforcement of the requirements of the CRS in practice.
New Caledonia has a legislative framework in place to enforce the requirements in a manner that is largely consistent with the CRS and its Commentary. However, deficiencies have been identified. More specifically, while New Caledonia’s legislative framework provides for sanctions that cover most Reporting Financial Institutions that fail to conduct due diligence or fail to keep records relevant to the AEOI Standard, and also provide relevant authorities access to such records, there are a small number of Reporting Financial Institutions falling out of scope of these provisions. These deficiencies relate to key elements of the AEOI Standard and are therefore material to its proper functioning.
Recommendations:
New Caledonia should amend its domestic legislative framework to provide the appropriate authorities with the power to access the records and evidence relevant for verifying and enforcing the AEOI Standard for all Reporting Financial Institutions.
New Caledonia should ensure that it has sanction provisions applicable to all Reporting Financial Institutions that fail to conduct the due diligence requirements or fail to keep records in accordance with the AEOI Standard, regardless of the impact on reporting.
CR2 International legal framework: Jurisdictions should have exchange relationships in effect with all Interested Appropriate Partners as committed to and that provide for the exchange of information in accordance with the Model CAA.
Determination: In Place
New Caledonia’s international legal framework to exchange the information is in place, is consistent with the Model CAA and its Commentary and provides for exchange with all of New Caledonia’s Interested Appropriate Partners (i.e. all jurisdictions that are interested in receiving information from New Caledonia and that meet the required standard in relation to confidentiality and data safeguards) (SRs 2.1 – 2.3).
SR 2.1 Jurisdictions should have exchange agreements in effect with all Interested Appropriate Partners that permit the automatic exchange of CRS information.
New Caledonia has exchange agreements that permit the automatic exchange of CRS information in effect with all its Interested Appropriate Partners.
Recommendations:
No recommendations made.
SR 2.2 Such an exchange agreement should be put in place without undue delay, following the receipt of an expression of interest from an Interested Appropriate Partner.
New Caledonia put in place its exchange agreements without undue delay.
Recommendations:
No recommendations made.
SR 2.3 Jurisdictions should ensure that the exchange agreements in effect provide for the exchange of information in accordance with the requirements of the Model CAA.
New Caledonia’s exchange agreements provide for the exchange of information in accordance with the requirements of the Model CAA.
Recommendations:
No recommendations made.
Comments by the assessed jurisdiction
No comments made.