1.1. From a European perspective

As mentioned in the comparative literature review⁹, regarding European Union law, the principle of fiscal cooperation is not explicitly codified in the Treaty on the Functioning of the European Union, but, in the creation of the customs union with the consequential removal of tax barriers, there has been a process of harmonisation of tax legislation. Actions have been planned, for the exchange of information and administrative cooperation, to make the Law of the European Union effective. Close and regular cooperation will also help to combat fraud and illegal activities (art. 113, 115, 197 and 325 of the Treaty on the Functioning of the EU).¹⁰

Regarding the Community framework, from 2009-2010 the leading force for expanding international cooperation, between tax administrations from different jurisdictions in the world, has been the European Union, who approved a list of rules, considered hard law (in the framework of direct and indirect taxation), which ultimately aims to enable close cooperation between Member States in applying the tax system. As referenced below:

Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments (repealed)¹¹; Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (DO L 84 de 31.3.2010, p. 1); Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (DO L 268 de 12.10.2010, p. 1); Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation¹² (amended by the ECOFIN council on December 9, 2014 -Directive 2014/107/UE-); Council Regulation (EU) No 389/2012 of 2 May 2012 on administrative cooperation in the field of excise duties and repealing Regulation (EC) No 2073/2004; Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (Codified version)¹³, or even the European Commission's proposal for a Council Directive implementing a financial transaction tax through the enhanced cooperation procedure, published on 14 of February 2013.¹⁴

The Legislation is completed among other standards, such as; the Communication of 28 April 2009 (Communication on Promoting Good Governance in Tax Matters); European Parliament resolution of 10 February 2010 on promoting good governance in tax matters; the Communication from the Commission, 2012 Brussels, COM (2012) 722/2 final on an action plan to strengthen the fight against tax fraud and tax evasion and; Communication from the Commission to the Parliament and the Council of 18 March 2015 COM (2015) 136 final on fiscal transparency to combat tax evasion and avoidance, whose objectives certainly highlight the need to carry out a coordinated action by the Member States for a good tax governance, in order to reach two purposes: promote the correct application of national tax systems and, help in the fight against fiscal fraud and tax evasion.

1.2. From an international perspective

Returning to the hypothesis posed at the beginning of this study, it is now possible to State that in the international context, as in the community context, there has not been created a "Global codification" about international administrative cooperation in tax matters.

We cannot deny that there have been some important initiatives to achieve more extensive cooperation and mutual assistance between countries, promoting not only the exchange of information, as a form of cooperation, but also other systems of collaboration between the different tax administrations. We would like to remark that it has occurred through specific regulatory instruments. Specifically: a) the Convention on Mutual Administrative Assistance in Tax Matters (1988). The Convention is, probably, the most comprehensive multilateral instrument available for all forms of tax cooperation to tackle tax evasion and avoidance, a top priority for all countries. The Convention was developed jointly by the OECD and the Council of Europe in 1988 and amended by Protocol in 2010 to respond to the call of the G20 at its April 2009 London Summit to align it to the international standard on exchange of information on request and to open it to all countries. b) the Agreement on Exchange of Information on tax matters, which purpose is to promote international cooperation in tax matters through exchange of information and recently, the new OECD Standard of automatic exchange of financial account information in tax matters. c) The Common Reporting Standard (CRS), d) The Base Erosion and Profit Shifting (BEPS) Project. The BEPS project is an important instrument for the international tax cooperation to combat the base erosion and profit shifting. As we can read in the background brief, January 2017, OECD, "The international tax landscape has changed dramatically in recent years as a result of economic challenges, and new standards have been developed to enable countries protect their revenue bases". The BEPS package consists of reports on 15 actions. These actions have been created in order to combat the base erosion and profit shifting in the framework on Corporate income tax and economic activities. BEPS, says the source cited "is of major significance for developing countries due to their heavy reliance on corporate income tax, particularly from multinational enterprises".

In the last decade of the 20^th Century and intensively in the years since the 21^st Century began, particularly from 2009, the Global Forum of transparency and exchange of information for tax purposes and, the G20, have both played a very important role in the international and European Community framework and there has been a profound movement and positive approach towards developing the necessary cooperation between different countries in this area, significantly enhancing all kinds of initiatives to that end. It can be observed that a strategy actively undertaken by the G20 and the OECD (with the reactivation of the Global Forum) is aiming to achieve a real and effective international administrative cooperation in tax matters. In this scenario, the exchange of tax information between tax administrations has a leading role. A key aspect of that cooperation is exchange of information.¹⁵ The president of the OECD announced in 2009, "Over the past ten months, there has been a revolution in the tax world. More than a decade of work led by the OECD, together with the political leadership of the G20, has permitted unprecedented progress towards better transparency and exchange of information".¹⁶

Note: Regarding the first initiatives of international cooperation on tax matters, from its inception (actions of the League of Nations), and its subsequent evolution, abundant literature has been reported. A number of researchers have also reported on such historical developments in transnational tax information exchange. I will therefore not dwell on matters already widely discussed.¹⁷

Several reports have shown that, from an international perspective it could be considered that:

- Cooperation between tax administrations is critical in the fight against tax evasion, regarding worldwide earnings and European earnings.

- Cooperation between tax administrations is critical to maintain national tax sovereignty. Every day can be seen more and more cross-border transactions and the internationalization of financial instruments in a globalized world. In the global era, tax administrators must extend their reach beyond the borders of the Nation State.

- Cooperation between tax administrations is critical in an environment of global crisis for States to maintain their revenues.

It should be noted that, some of the legal basis for information exchange rules were created before 2009. However, since the creation of the Global Forum of transparency and exchange of information for tax purposes, with the unconditional support of the G20, an awareness has been achieved in the countries in order to reach a greater cooperation in administrative tax matters. It was possible thanks to; the standards of transparency and exchange information; the peer review establishment of the Global Forum; the publication of annual OECD reports (Progress reports); and, in particular, the publication of "A progress Report on the Jurisdictions surveyed by the OECD Global Forum in implementing the internationally agreed tax standard", published on April 2, 2009, addressing both cooperating and non-cooperating countries (famous black list).²¹ In general, the jurisdictions have shown their interest in following the standards, in return for not being included on the blacklist²².

However, the first most decisive step towards greater administrative cooperation between tax administrations through automatic exchange of tax information was given by the United States in 2010.

In that year, the Congress of the United States enacted the "Hiring Incentives to Restore Employment (Hire) Act" which added new sections 1471 to 1474 (the Foreign Account Tax Compliance Act) to the United States Internal Revenue Code.²³ The name would not change in following revisions of the Code and is known by the acronym FATCA.²⁴

In this Act, the system of automatic exchange of information, as a truly effective instrument towards cooperation, is established. This system greatly improves the effectiveness in achieving cooperation between countries, as stated by the OECD.²⁵

Hence, in the battle against tax havens and the relocation of income, the strong influence the USA, through FATCA, has set has really started a move towards cooperation through an automatic exchange of information as an efficient mechanism towards administrative cooperation in tax matters. The game changer in automatic exchange was the enactment of the Foreign Account Tax Compliance Act (FATCA)²⁶ in 2010, and the subsequent development of an intergovernmental approach to its implementation by the USA, in close cooperation with the G5 (Model IGA, Known as Model 1^4.. "The UK was the first to sign an IG with the US on September 12, 2012 (UK-US IGA)".²⁷

In the years following the introduction of FATCA, the OECD began looking for a more effective mechanism of cooperation. It has recently taken automatic exchange as the standard of transparency because of its high efficiency and effective cooperation.

On June 2013, the G8 Leaders adopted the commitment to establish automatic exchange as the new global standard of transparency. On September 2013, the G20 Leaders endorsed the OECD (Global Forum) proposal for a truly global model of automatic exchange in order to present such a new single standard in time for the G20 February 2014 meeting. In February 2014, the G20 Finance Ministers and Central Bank Governors endorsed the global standard for automatic exchange of tax information. At the OECD Ministerial Council Meeting in Paris May, 6-7, 2014 was adopted the Declaration on Automatic Exchange of Information in Tax Matters, and on July 15, 2014 the OECD Council approved the Standard for Automatic Exchange of Financial Information in Tax Matters, and on September 2014 this standard was endorsed by the G20 Finance Ministers at meeting in Cairns.²⁸ The first edition of the CRS implementation handbook was published in August 2015. At the present (2016 and beyond), the Global Forum is undertaking a review of the confidentiality rules and practices in place in committed jurisdictions, as to ensure that the automatic exchange of CRS information takes place in a secure environment.²⁹ In February, 2016 the business and industry advisory committee to the OECD (BIAC) has drafted the self-certification forms and has requested the OECD to make these forms available on the AEOI Portal to assist with the implementation of the CRS.³⁰ Recently the OECD has published the following documents: the CRS Implementation Handbook, the CRS Status Message XML Schema - as well as the related User Guide and the "CRS -related Frequently Asked Questions". Besides that, the Action 5 of BEPS Project "is committed the Forum on Harmful Tax Practices to Revamp the work on harmful tax practices with a priority on improving transparency, including compulsory spontaneous exchange on rulings related to preferential regimes, and on requiring substantial activity for any preferential regime" (executive summary Action 5: 2015 Final Report, p. 9).

More recent attention has focused on the new Common Reporting Standard cited. It is a subject currently "in vogue", as one of the recent main trends of international taxation, and is being studied by the tax law authors of international tax law literature.³¹ It is therefore to be expected that the automatic information exchange will be the dominating model of international cooperation in the future.³²

Can be argued that the automatic exchange information has become the new global paradigm of multilateral international cooperation relations because it reduces costs and increases the effectiveness of global cooperation. However, this is only in theory and not in practice. Several questions remain unanswered. There are still many matters to address, such as: coordination systems between different kinds of legal instruments to achieve cooperation in tax matters; overlapping rules; the thin line between fishing expeditions versus automatic exchange of information; the effective protection of taxpayers' rights; the implementation of costs; risk analysis and data protection, amongst others.

In addition, many countries have major obstacles to overcome before being able to enforce the Common Reporting Standard. On the one hand, not all countries have the technical and practical capability to write programs and require technical assistance. On the other hand, national barriers exist preventing application of the common standard.

To apply this standard, many countries must first make substantial changes to their own national laws and practices. In some cases, changes through national parliaments will be required. For example, changes in domestic legislation to remove the restrictions on access to bank information, enabling financial institutions to gather more customer information to transmit it to the tax authorities.

Even though some of these questions have been included in some legal instruments, it is not enough because the scope is not global; not all instruments have been referenced, and not all instruments referenced cover the same issues.

5.1. About the European Union context

Recently, in the European Union context has been two legal bodies about the regulation of "Automatic Information exchange" of cross-border interest:

- For the application of the old savings Directive (which entered into force in July 2005) the European Union adopted common standards -FISC 39 and FISC 153- based on two previous works of the OECD: a) SMF (standard magnetic format) and STF (standard transmission format), XML-based language (PECHO, 2014: 34).

- The Directive on Administrative Cooperation -namely 2011/16/EU on administrative cooperation in direct taxation-. The Directive 2010/16/UE standardized procedures dictated by the EU under the comitology procedure of Decision 1999/468/EC provides. Recently, the ECOFIN Council approved the amendment of this Directive on December 9, 2014. This amendment incorporates the recently published OECD common reporting standard into the directive (Directive 2014/107/UE).

The existence of these two standards in the EU involved an overlap of regulations regarding automatic information exchange. This is due to the fact that the automatic exchange of information was been regulated by the saving directive. In 2014 there was an amendment from the Directive on administrative cooperation to include automatic exchange according to the OECD standard. As a result the savings Directive has been exceeded and wider automatic exchange of financial account information is required. For this reason the Council ECOFIN has removed the saving directive on November 10, 2015 with effect 1 January, 2016 (except for Austria from January 1, 2017).

Despite this, the EU has reformed the cooperation directive to incorporate the standard of automatic exchange OECD, however the procedures are under and it does not seem that a substantial change regarding the procedures currently applied in the savings directive will occur. The EU Saving Directive required reports which differ from the Common Reporting Standard and FATCA.³⁷ At this point it is unclear whether reporting under the administrative cooperation directive will converge with the CRS (KPMG International report).

According to the Communication from the Commission to the European Parliament and the Council on March 18, 2015, the provisions of substantive and procedure, previously contained in the Saving Directive, are now included in the scope, and are more extensive, than the directive on administrative cooperation. This is included in the new fourth paragraph of Article 20 of the modified cooperation Directive. It is clear that the procedure rules contained in the saving tax Directive are not similar to the procedure rules contained in FATCA and in standard automatic exchange information of the OECD. Hence their convergence with the OECD standard might be adapted.

5.2. About the United States and OECD roles

In addition to what has been said before, FATCA remains a very complicated procedure to apply. The OECD revises its procedures to close the gap and trying to coordinate with other regulations, especially with FATCA, but nowadays the same procedures cannot be used between FATCA and the OECD standard as a consequence of the differences between them, because "there may be substantial differences in terms of the scope and processes required to implement FATCA as compared with the Standard".³⁸

Differences between FATCA and the CRS (Common Reporting Standard) mean that financial institutions may not be able to use the same due diligence as reporting system for both standards.³⁹

Table 1 Differences between OECD standard automatic exchange information and FATCA⁴⁰  

6.1. From bilateral treaties to multilateral instruments

Historically Mutual Assistance and International Cooperation in tax matters has been done through bilateral treaties to avoid double taxation.⁴¹

"The traditional form of co-operation between countries in the tax area is based on bilateral conventions".⁴²

Such treaties have mainly been adopted following the conventions of the OECD Model Convention: the OECD Model Tax Convention on Income and on Capital (OECD Model), created by the Committee on Fiscal Affairs of the OECD. Both the Model Convention and the other existing models, such as those of the United Nations, the United System Model, etc., contain a clause under article 26 for tax information exchange⁴³. The problem is that there is only a single provision in the Model Conventions and this is not sufficient to facilitate such a large scope.

However, nowadays the pendulum has swung subscribing towards multilateral agreements and hence the States are ascribing to the new standards of transparency, exchange of information and cooperation through multilateral instruments.

Hence, the trends on international taxation are shifting. We are living in a new era where 'the international taxation is shifting from legal bilateralism to multilateralism'.⁴⁴ Despite this, in the near future we can wonder what will happened as a consequence of Brexit and new US policies in favour of the bilateralism treaties.

6.2. The current role of Article 26 MC OECD

We are witnessing a moment where the technical efficiency must prevail in matters of international cooperation, and for this reason, the OECD considers that whilst bilateral treaties such as those based on Article 26 of the OECD Model Tax Convention permit the exchanges of information, it may be more efficient to establish automatic exchange relationships on the basis of a multilateral exchange instrument.⁴⁵

The authors of tax law have asserted deficiencies or limits of Article 26 MC OECD, whose purpose and scope is limited to the strict terms set forth in the wording of that article. Undoubtedly the most remarkable limit is that it only operates in countries with a treaty network and does not work in relation to countries, notably tax havens, where not signed bilateral treaties exist to avoid double taxation.⁴⁶

Taken together, these results suggest that the relevance of bilateral agreements to avoid double taxation with respect to administrative cooperation (ex. arts. 26-27 MC OECD) is ending, and may become, a "dead letter". In that way, we can say that international administrative cooperation in the form of multilateral instruments have become much more effective than cooperation through bilateral tax treaties. In other words: "Articles 26 and 27 of tax treaties are gradually becoming obsolete".⁴⁷

However, this conclusion must be weighted for the following reasons: a) many developing countries prefer to sign bilateral treaties with a clause on exchange of information ex Art. 26 OECD Model as older versions, b) there are over 3000 bilateral agreements signed following the OECD Model, which means that its use has been widespread and cannot be replaced as quickly and c) to apply the standard for automatic exchange information in tax matters (OECD), the Competent Authority Agreements (CAA) can be executed within legal frameworks such as the equivalent of article 26 in a bilateral tax treaty; c) The new trends in the world if we see the new policies of Brexit an US in favour of bilateral treaties. Changes in the new international political and economic scenario have been developing: the Sarkozy-Obama-Merkel era is over. Nowadays, there is a strong presence of the new international trade policies leaded by U.S., U.K., and China. And these actions could displace the pendulum from the last tendencies in favour to multilateral systems toward the bilateralism models.⁴⁸ Nevertheless, in my opinion it is impossible to curb the importance that multilateralism movement has still achieved.

6.3. The prominence of "soft law"

The fact that a coded a general principle of administrative cooperation in tax matters in the international regulatory framework has not been codified, has perhaps influenced the so called acquis of 'soft law' enhancement to perform an important action to purposes establishing relations of tax cooperation between States in order to prevent tax evasion and avoidance, and to ensure the survival of States. Important instruments and reports enacted by different international institutions can be cited in regards to this:

- OECD Model Convention for the avoidance of double taxation and their Comments and also another Models Convention of different institutions. Most notably the OECD Model which has been adapting to emerging new needs arising from time immersed in globalization policies.

- OECD Tax Information Exchange Agreement 2002 (OECD TIEA).

- OECD Harmful Tax Competition: An Emerging Global Issue (1998); 'Towards Global Tax Cooperation: Progress in Identifying and Eliminating Harmful Tax Practices, OECD (2000)'; 'The OECD'S Project on Harmful Tax Practices: The 2001 Progress Report, OECD'; 'The OECD'S Project on Harmful Tax Practices: The 2004 Progress Report OECD'; 'The OECD'S Project on Harmful Tax Practices: 2006 update on progress in member countries'.

- OECD Tax Cooperation: Towards a Level Playing Field (2006) (2007) (2008) (2009) (2010).

- OECD-Global Forum on Transparency and Exchange of Information. The Global Forum was restructured in September 2009 in response to the G20 call to strengthen the implementation of the Standard.⁴⁹ Since 2009 the Global Forum has published different annuals reports about the implementation of the international standard for transparency and exchange of information on request for tax purposes. OECD, A progress report on the jurisdictions surveyed by the OECD global forum in implementing the internationally agreed tax standard (April 2, 2009); "Tax transparency: Report on Progress" (2011), (2012), (2013), (2014); Peer Review Reports, etc.

- United Nations Reports. United Nations issues annual reports where various topics are included, such as environmental taxation, international exchange of tax information, assistance with collection, etc. Documents can be consulted in the list of Documents on International Cooperation in Tax Matters,⁵⁰ enacted by the Committee of Experts on International Cooperation in Tax Matters.⁵¹

- Reports and Recommendations of the European Union. Among the number of reports and recommendations issued by the EU, the following can be highlighted: a) the Communication from the Commission to Parliament and the Council of Europe 2012, entitled Action Plan to strengthen the fight against tax fraud and tax evasion, and b) years before the Communication from the Commission to the Council, the Parliament and the economic and Social Committee on good governance in the tax area, of April 28, 2009, COM (2009) 201 end; and this year, The Communication from the Commission to the Council, the Parliament, March 18, 2015 about fiscal transparency to combat evasion and fiscal avoidance.

6.4. The power of United States (FATCA) in exchange of information guides

The fact that there is no principle of international cooperation has facilitated the United States' pre-eminence in the world regarding the administrative cooperation in tax matters through its Foreign Account Tax Compliance Act (FATCA).

The United States has demonstrated its persuasive powers in the international tax matters relations, driving the adoption of the FATCA Model IGA with the G5 group. 'On 9 April 2013, the Ministers of Finance of France, Germany, Italy, Spain and the UK announced their intention to exchange FATCA-type information amongst themselves in addition to exchanging information with the United States'.⁵²

Subsequently there has been an expansive force of the IGA I and II models (so much have proliferated a great number of agreements signed with the US). This has also generated significant criticism of the imperialistic nature of FATCA: FATCA for all or alternatives to FATCA, also enhancing the comparative studies on the Rubik agreements and Models of FATCA Agreements.⁵³

6.5. The risk of economic globalization

The orphan hood of a general principle of international administrative cooperation in tax matters has not helped to prevent possible risks in a globalized world with free movement of capital.

The exponential increase in the phenomenon of relocation of production activities and/or the profit shifting, requires greater tax cooperation, imposes on the principle of transparency and exchange of information⁵⁴ (note that increasingly moving towards a model where investment, economic activities and fiscal operations performed "outside the walls" have gone from the exception to rule).

Recent trends in international tax law have led to a proliferation of studies on the relevance of exchange of information in tax matters. Indeed, nowadays there is no doubt regarding the relevance of the fiscal information exchange between tax administrations for the States.⁵⁵

And what's more, the drag effect of economic globalization on aspects such as: the intensification of sometimes pernicious fiscal competition, the proliferation of preferential tax regimes; the relocation of capital income, etc.; are all factors that have increased the role of information exchange on the international stage.

These results further support the idea that there has been a relevant shift in the way exchange of information is considered in international tax law: Not only like an instrument to avoid the international tax fraud, as well as a system to ensure the survival of States, because every day more, the transactions and economic activities are cross-border.⁵⁶

Therefore, compared with a more traditional view that regarded the mechanism of international tax information exchange as a classical instrument in the fight against fraud and international tax evasion; due to emerging new realities in international economic-fiscal reality, a new trend is confirmed and adhered to. This thesis is that a State cannot manage the domestic tax system itself, both compared to other Member States of the European Union⁵⁷ and to the international community.⁵⁸ This phenomenon increases in times of economic and financial crisis such as that which began in 2008.⁵⁹

6.6. The absence of a principle of international administrative cooperation in tax matters has negatively affected taxpayers' protection

Over the last twenty years, academic literature has expressed concerns that, in the field of international information exchanges, no rights and guarantees of taxpayers have been sufficiently protected. In 1998 Professor Sacchetto announced that, with all probability, taxpayer protection is the weakest aspect of information exchange.⁶⁰

The conflict is essentially the collision of two important faculties: the taxpayers' rights on the one hand, and, on the other hand, the States' rights to carry out exchanges of tax information. What needs to be achieved is to ensure taxpayers' rights and guarantees do not impede the procedures for the exchange of international information. This dichotomy is evident in the Multilateral Convention on Mutual Assistance of 1987, in the Model Convention on Information Exchange 2002 OECD in EU legislation and scientific literature.⁶¹

In recent years, scientific literature has developed greater scrutiny about taxpayers' rights. Some authors consider that in the present there are better and more comprehensive protections for taxpayers, albeit more incipient⁶². The truth is that this matter is still a pending issue.

But it is striking that from a legal basis, the taxpayers' rights have not -always- been sufficiently regulated: often incompletely regulated or sometimes only indirectly regulated, despite to it is true that they have been regulated in different laws and other sources of law, starting by the Constitutions. In the OECD Model Convention and other Models like the US or UN Models, there are not explicitly and directly recognized taxpayers' rights, but in a way this has been perceived as a "hint". For example, in the 26th clause of the OECD Model limits and restrictions on the destination and use of the Tax Information Exchange are included. But a disciplined and detailed regulation has not been achieved⁶³ As a consequence; bilateral agreements to avoid double taxation signed following the Model Convention OECD did not explicitly recognize taxpayers' rights.

Regarding the Multilateral agreement on mutual administrative assistance of 1988, its article 4.3 provides the right for residents or nationals and those related to be informed by the relevant authorities before transmitting the required information. However, one article is insufficient to fully protect the rights of taxpayers. On the other hand, the Tax information exchange Agreement (2002) OECD contains a specific article about taxpayers' rights regulation, but its scope remains limited. In particular Article 1 states: The rights and guarantees afforded to persons by the laws or administrative practice of the requested party shall continue to apply provided they do not unduly prevent or delay effective exchange of information.

In addition, in the European Directive on cooperation, no protection of the rights of taxpayers is contained. In its preamble, n. 28 provides that fundamental rights are respected in the planned European Charter of Nice 2000, but as a policy document it was not binding in nature. A very loose duty to notify the taxpayer is regulated for under Article 13a of the European Directive on cooperation but depends on the internal regulations of each State.

Studies on the subject have highlighted the supremacy of public finance reasons as well as a fast and effective exchange of information practical prior than taxpayers' rights.⁶⁴

The most obvious finding to emerge from this and other studies is that taxpayers' rights are guaranteed when: a) a particular State recognizes those rights in its domestic law and b) depends whether this State wants to protect these rights when exchanging international information.

Title I. Cooperation between tax administrations

Sec. 1. International and EU legal basis

Identify hard law and soft law sources regarding cooperation between tax administrations. In this Code should be included the general international legal basis for the information exchange among States (OECD model, UN model, US model, CIAT Model, agreement of information exchange OECD 2002, Multilateral convention of mutual assistance 1988, amending Protocol 2010, standard automatic exchange of tax information OECD) and the European sources (hard and soft law).

Direct taxation, Indirect Taxation, Customs...

Sec. 2. Principles of administrative cooperation in tax matters

Sec. 3. Concept and activities of administrative cooperation/mutual assistance

Exchange of information

Presence of officials in countries of other tax administrations Participation of officials in investigations made by other countries Simultaneous controls Cooperation in tax notifications

Sec. 4. Mutual assistance in tax collection

Sec. 5. International accounting and simplify accounting systems Sec. 6. Simplify tax systems

Sec. 7. Development of a general theory on good fiscal governance

Another major pending issue in international taxation is the consolidation of an international tax governance. It is essential to establish good fiscal governance policies in developed and developing countries to contribute to the efficiency of tax systems.

In the European level have been carried out various actions such as: the Code of conduct for business taxation (1997), the action plan against fraud and tax evasion (2012), and recently the communication from the Commission to Parliament and the Council of 18 March 2015 on fiscal transparency to combat tax evasion and avoidance.

In the international context, there were multilateral discussions within the "Group of twenty" (G20) and the glodfbal forum on transparency and exchange of information between States. But, good international fiscal governance is far from being achieved.

Sec. 8. Standard administrative procedures for exchange of tax information and other cooperation activities

Standardization of procedures for administrative cooperation. Protocols, forms, computer systems. It would be even necessary to develop common procedural standards and compatible information and communication technology.

"Standardisation of formats is critical to the efficiency and effectiveness of automatic exchange". In the Automatic Standard for Automatic Exchange of Financial Account Information. Common Reporting Standard⁶⁵, we can read: 3. Common or compatible technical solutions. 16. Common or compatible technical solutions for reporting and exchanging information are a critical element in a standardised automatic exchange system - especially one that will be used by a large number of jurisdictions and financial institutions. Standardisation will reduce costs for all parties concerned. 17. The technical reporting format must be standardised so that information can be captured, exchanged and processed quickly and efficiently in a cost-effective manner and secure and compatible methods of transmission and encryption of data must be in place.

As it has been stated in a report issued by the G20 ⁶⁶: "specific cost for implementing the Standard may be lower if undertaken in coordination with FACTA implementation". But not only FATCA, we propose that the main institutions which have created legal basis to automatic exchange information make an effort in order to achieve a global Standard automatic exchange system.

If we get that at least EU, OECD and US (with the commit of G20 and United Nations) reach an agreement to establish common rules to standardize procedures, it is likely that every country in the world would be governed by those rules.

Figure 4 Requirements of transmitting and receiving jurisdictions. 

As I prior said, Recently the OECD has published the following documents: the CRS Implementation Handbook, the CRS Status Message XML Schema - as well as the related User Guide and the "CRS -related Frequently Asked Questions".

Sec. 9. Costs

Another important chapter is the cost of implementing the exchange of information between States.

In the OECD Model, cost collection provisions costs and the problems derivative have been addressed by the competent authorities. Both the agreement on exchange of information OECD (art. 13) and the Multilateral Convention (art. 26) distinguish between ordinary and extraordinary costs. The ordinary costs are for the requested party while the applicant pays the extraordinary costs. Also in the Common standard reporting of the OECD there are reference to in its comments. In the costs issues, we can underline the Aims at proposing sustainable tax policy decision that will benefit developing countries from the Norway's Council.

It is very important to note that for States to apply a common global standard automatic exchange it is necessary to minimize costs through standardised procedures valid for all countries, because otherwise short and medium-term costs may be much higher than the benefits. This should therefore be conceived as a very important chapter of a future Code of Administrative cooperation in tax matters.

Title II. Cooperation between tax administration, taxpayers and intermediary's agents

Sec. 1. Legal basis

Identify hard law and soft law sources regarding cooperation between tax administrations. Multilateral and bilateral treaties, EU Regulations and Directives, Recommendations, Charters of taxpayers' rights...

Sec. 2 Promoting tax compliance systems

Cooperative Tax Compliance Framework: 2002. The Forum of Tax Administration (FTA); (2006) Final Declaration of Seoul; (2007) Communicated of Cabo, (OECD) "Study into Role of Tax Intermediaries"; (2009) OECD. Communicated of Paris. "Experiences and Practices of Eight"; (2009) OECD "General Administrative Principles". (2009) "Corporate Governance and Tax Risk Management"; (2010) OECD. 'Tax compliance and Tax Accounting Systems"; (2013) OECD "Co-operative compliance: a framework; (2016) OECD. Co-operative Tax Compliance".

Concept: from "Enhanced Relationship" to "Co-operative Compliance".

Principles: Transparency, Loyally, Mutual security, Proportionality, Impartiality, etc.

Advantages for the Tax administrations and for the taxpayers.

Systems to be offer to the States (unilateral declaration by the tax authorities; mutual agreement between tax administration and tax payers and tax advisors; or Individual Agreements with each company).

Models of tax compliance applied in some countries as Netherland, Australia, U.S., Ireland, etc.

Sec. 3. A general theory about taxpayers' rights

Towards an "international minimum standard on taxpayers' rights and protections", accepted by all nations.

The taxpayers' rights are not included in the model convention for the avoidance of double taxation and bilateral agreements signed following such models; they have not been well regulated in EU Directives⁶⁷, and even much less in FATCA. Only the multinational mutual assistance convention and the 1988 Model Agreement on Exchange of Information alluded to this matter, but with narrow scope. Therefore, there is a lack of a general theory of taxpayers' rights in exchange information. The legal basis for exchange of information contains rules on the confidentiality (art. 26.2 OECD Model, Art. 8 agreement information exchange, Art. 22 Multilateral Convention of mutual assistance, commentaries on the model CAA of new Standard for automatic exchange of financial account information). Also the OECD has published a guide what are considered to be the best practices about confidentiality and it provides practical guidance on how to ensure an adequate level of protection.⁶⁸ On the other hand, the European Commission has published A European Taxpayers' Code⁶⁹. All this should be taken into consideration when developing a general theory of confidentiality that has a global reach.⁷⁰

Sec. 4. The intermediary's agents

Title III. Conflict resolution systems

Sec. 1. Traditional systems for conflict resolution (Courts, i.e. CJEU).

MAPS

Appeals in Courts

Sec. 2. Cross-border alternative tax dispute resolution systems:

Arbitration, ombudsman, mediation, tax agreements...

This Code is concerned with bridging the gap between the opportunities offered by enhanced tool for administrative cooperation and the need to introduce more effective and efficient approaches to alternative modes of settlement of cross-border tax disputes.

This exercise would also place a focus on the need to incorporate alternative dispute resolution mechanisms within legal instruments providing for administrative cooperation, so to ensure a more immediate leverage for the safeguard of the rights of the concerned taxpayers. The scope of this section would then be further broadened in order to investigate the legal and institutional reforms that may promote the consolidation of a more robust alternative dispute resolution framework in relation to tax disputes. In particular, focus would be placed on the identification of the most suitable procedural tools, and in particular, on the desirability of extending mediation (which already forms the object of an EU Directive) to tax issues.

The ultimate goal would be to create an international theory on cross-border alternative tax dispute resolution systems with the possibility to create and international institution/agency on alternative dispute resolution in cross-border tax matters.

Note:

In our Project funding by the Spanish ministry of economy and "competitiveness" (EUDISCOOP) DER 2015-68768-P⁷¹ we propose the creation of a European Agency: centralised European body (typically, in the form of a European agency) entrusted with the channelling and oversight of alternative dispute resolution mechanisms. We consider the foreseen institutional reforms as the first core of a tendency towards administrative integration in tax matters within the European Union, which would encompass the emergence of a more comprehensive European Tax Agency which could serve as a "one-stop shop" for European taxpayers in relation to cross-border issues.

That we are proposing is the creation of an International ADR Agency. This Agency will has different sections, with expert people in each one of them, in order to put in practice the different systems to resolve transborder conflicts in tax matter. This sections would be: Mediation, Arbitration, Ombudsman, Agreements, etc.

Title IV. Systems combating tax fraud at the international and EU

Final notes by the author