The Ministry of Finance is examining the recommendations of the National Data Protection Commission (ICPD) on access arrangements and automatic exchange of financial information, promising to accommodate most of the suggestions made in the diploma end.
the specific recommendations text change made by the CNDP, which does not cope with the background solution, are under review following the process consultation and will be generally accepted in the final text “ , said the Ministry of Finance in response to questions posed by the Lusa agency, the day that the Journal News forward the “Fisco access to all bank accounts is illegal” .
at issue is a government diploma project about access system and automatic exchange of financial information in the field of taxation, which provides that the bank send once a year, residents’ accounts balances in Portugal, which led to several criticisms of the ICPD, particularly as to its constitutionality.
the legal provision of the reporting obligations to the Tax Authority (aT) of the account balances of all members and beneficiaries resident in national territory reflects a unnecessary and excessive restriction of the fundamental rights to protection of personal data and the protection of private life, in violation of the Constitution of the Portuguese Republic “ , warned the president of the CNDP, Filipa Calvão, in an opinion dated July 05.
Now, the Ministry of Finance said the Lusa that is examining the recommendations of the ICPD, but also “working on the definition of a threshold below which the scheme is not apply in Portugal “
this is because the two international agreements on the basis of this draft. – the FACTA (Foreign Account Tax Compliance Act) with the US and the European directive ‘DAC2′ – allow this communication does not occur to accounts “with low risk of use for the purpose of tax evasion,” writes the ministry.
in the case of FACTA, the reporting obligation is foreseen only for accounts with amounts in excess of $ 50,000 (or about 44,000 euros).
in addition, the Ministry of Finance is “to analyze and consider hosting” specific recommendations of the ICPD, to “explicitly prohibit access by third parties, whatever its legal status, data obtained by aT “(and allow it only with European Commission decision or opinion of ICPD); “Strengthen security measures for the information in question and ensure compliance with personal data protection rules by any subcontractors by financial institutions.”
These were some of the recommendations made by the ICPD, but the main concern of the commission is in “clear excessiveness” of access to data by the aT, because, see, “is not invoked, nor demonstrated the need for such communication.”
it is clearly too high to know financial information in such a high level of personal data holders (almost all owners and beneficiaries of resident financial accounts in Portuguese territory) without criteria are defined minimum (and proportionate) that evidence suggesting illegal tax behavior or at least that identify risk situations such behavior “ , defends the ICPD.
This opinion, of July 5, arises after the Secretary of State for Fiscal Affairs, Fernando Rocha Andrade, have sent for analysis, a decree-law bill that “results from international commitments binding character assumed by the Portuguese State.”
at stake is ‘DAC2 policy’, which provides an automatic mechanism for access and exchange of financial information regarding accounts held in Portugal by non-residents and accounts held by residents abroad, including Portuguese nationals, and the FATCA agreement with the US, signed by the previous government and yet approved by Parliament.
tutored ministry by Mário Centeno says that “most European countries have incorporated or are in the process of incorporating these solutions in their legislation” and that Portugal, for not having transposed the directive, “is in compliance to the European Union.”
the Government intends to comply with the international commitments of the Portuguese State in this matter and strengthen the mechanisms that are internationally considered necessary as a means of combating fraud and tax evasion, money laundering and the financing of organized crime and terrorism “ , ensures the protection.
Thus, “without prejudice to the importance of the contribution of the ICPD,” the ministry stressed that “tax and access to information, the aT is strictly bound to comply with the legislation passed by Parliament while the same effect in the Portuguese legal system. “
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