October 31, 1996
Her Excellency Mrs. Jeanette Hyde
Ambassador of the United States of America.
Excellency:
I have the honor to acknowledge receipt of Your Excellency's Note No: 109 of today's date, which reads as follows:
"I have the honor to refer to the Treaty on Mutual Legal Assistance in Criminal Matters between the Government of the United States of America and the Government of Antigua and Barbuda ("the treaty") and to express the understanding of the United States regarding the application of the treaty to criminal tax matters.
Article 1(1) of the Treaty provides that assistance may be granted in connection with "the investigation, prosecution, and prevention of criminal offenses, and in proceedings related to criminal matters."
Article 1(4) further states: "This treaty is intended solely for mutual legal assistance in criminal matters between the parties as set forth in paragraph (1) above."
During the negotiations, the United States delegation was asked whether these provisions could be interpreted to exclude assistance under the treaty for civil and administrative income tax matters that are
unrelated to any criminal matter. The United States delegation agreed that the provisions could be so interpreted, and confirmed that the United States does not intend to seek assistance under the treaty in the
routine civil and administrative enforcement of our income tax laws, including the regulation, imposition, calculation and collection of such income taxes.
I have been advised by the Tax Division of the United States Department of Justice that criminal tax cases in the United States always involve a voluntary and intentional violation of a known legal duty. Under United States law, this standard entails willful conduct and would not be met where a defendant has acted negligently or carelessly. Moreover, to establish the required level of willful conduct under United States law, the Government prosecutor must show that the defendant took affirmative action, the likely effect of which was to mislead or conceal. Examples of such willful activity include keeping a double set of books, making false entries or alterations to financial records, or concealing assets or covering up sources of income.
Further, although the treaty has no general dual criminality requirement, my Government understands United States and Antiguan law to be consistent with respect to criminalizing willful, fraudulent
misconduct by private persons in representations to the Government. As a result, the conduct underlying a United States Government request to Antigua and Barbuda for assistance in a criminal tax evasion case would in all likelihood also be criminalized under the law in Barbuda.
Finally, Article 9 of the treaty has additional provisions that are relevant when a Party requests Government records in a criminal taxation matter. The law and policy of both the United States and Antigua and Barbuda recognize the need in many cases to restrict access to information collected by revenue authorities. Article 9(2) embodies this approach by providing that the Requested State may provide the Requesting State with non-public records. The Requested State retains "discretion [to] deny a request pursuant to this paragraph entirely or in part."
I would appreciate Your Excellency confirming that the understanding described above is also the understanding of the Government of Antigua and Barbuda.
Accept, Excellency, the assurances of my highest consideration.
I have the further honor to confirm to Your Excellency that the understanding described above is also the understanding of the Government of Antigua and Barbuda.
Please accept, Excellency, the assurances of my highest consideration.
Lester Bird
Minister of Foreign Affairs