The legislative landscape regarding DAC6 is developing across E.U. Member States as national governments move to introduce relevant laws before the 31 December 2019 deadline.
The amendment to Directive 2011/16/EU on mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements (DAC6 for short) will have far-reaching consequences for tax advisors, service providers and taxpayers.
DAC6 imposes mandatory disclosure requirements for certain arrangements with an EU cross-border element where the arrangements fall within certain "hallmarks" mentioned in the directive and in certain instances where the main or expected benefit of the arrangement is a tax advantage. There will be a mandatory automatic exchange of information on such reportable cross-border schemes via the Common Communication Network (CCN) which will be set-up by the EU. This video provide an overview of the key principles of DAC6.
We detail below relevant points regarding the final (in the case of Poland) or draft legislation (other countries) issued regarding DAC6 in selected E.U. Member States. Many other Member States will issue their DAC6 legislation later in 2019 in order to meet the 31 December 2019 deadline set by the directive in this respect.
Poland has introduced their Mandatory Disclosure Regime (“MDR”) on an accelerated basis; it is in full effect since 1 January 2019. Reportable arrangements implemented or made available on or after 1 January 2019 need to be reported within 30 days. The scope of the Polish MDR is much wider than the Directive as the Polish MDR includes 24 hallmarks (compared to 15 in DAC6).
Some of the DAC6-based hallmarks are split into several hallmarks or extended in scope. The Polish MDR also covers certain domestic arrangements. A transition period started on 25 June 2018 for arrangements that meet a DAC6-based cross-border hallmark and on 1 November 2018 when the arrangements meet the additional domestic hallmarks.
Reportable arrangements where the first implementation steps took place in the transition period need to be reported by 30 June 2019 (if reportable by an intermediary) or 30 September 2019 (if reportable by taxpayer). The Polish MDR covers a wider range of Polish taxes than the Directive (including VAT, Excise and Customs Duties). Certain intermediaries are also required to implement internal procedures to monitor reporting requirements; failure to implement such a procedure could lead to a penalty equivalent to EUR 500’000.
Failure to report or other non-compliance may be connected with two types of penalties:
- up to equivalent of EUR 2.5m with respect to an entity being a promoter or employing promoters for not having implemented the internal procedure on reporting, or
- up to equivalent of EUR 5m with regard to individuals responsible for non-compliance in reporting.
The draft proposal of the Swedish MDR Committee was issued on 15 January 2019. In addition to the cross-border arrangements in the directive, certain domestic arrangements are also in scope to the extent they concern income taxes and yields tax on pension funds. An exemption for domestic arrangements is proposed where the tax benefits “are a direct and foreseen effect of tax legislation”. In general, the hallmarks are in line with the E.U. Directive. Penalties can be levied up to the equivalent of EUR 50’000.
Draft legislation was published in mid 2018 and was subject to a public consultation later that year. Additional consultations are ongoing. The scope of the legislation is in line with the Directive and no domestic additions are expected. Penalties are in the range of EUR 2’000 to EUR 21’000.
The draft DAC6 implementation bill was published on 19 December 2018, which was supported by public consultation which terminated on 1 February 2019. The hallmarks in the draft bill are in line with the directive and no domestic arrangements are in scope. There is some additional guidance regarding the application of the Main Benefit Test. Penalties up to EUR 830,000 may apply for non-compliance.
The draft implementation bill of 30 January 2019 is available for consultation, and not yet been approved by the German government.
The German MDR is scheduled to enter into force on 1 July 2020 in line with the Directive. Domestic arrangements are expected to be in scope with respect to certain hallmarks but are subject to political discussion. The hallmarks themselves are generally in line with the Directive but certain modifications to transfer pricing and cross- border payments hallmarks are expected. Penalties up to EUR 25’000 can be applied.
Legislation is scheduled to be adopted in the coming months. The hallmarks are in line with the Directive and no domestic arrangements are in scope. Penalties of up to EUR 30’000 may be applied (and can be levied repeatedly where relevant).
A draft implementation bill was subject to public consultation until 20 January 2019. Legislation is scheduled to be adopted during Q2 or Q3 in 2019. The hallmarks are in line with the Directive and no domestic arrangements are in scope. Standard penalties of up to EUR 30’000 will be applied but can be increased to up to EUR 150’000 if non-reporting qualifies as a serious tax offense.
Find out more about DAC6 on our webpage.
A number of E.U. Member States are taking the lead in publishing their DAC6 local legislation well in advance of the 31 December 2019 deadline. It is important to note the divergences that have occurred regarding the implementation of DAC6 in different jurisdictions including
- Changes in timing regarding arrangements and reporting – Poland
- Extension of taxes in scope – Germany, Poland, Sweden
- Additional hallmarks – Poland.
These divergences make it even more important for groups with cross-border arrangements involving E.U. Member States to take a proactive approach to determining the impact of DAC6 of their organization, collect information regarding possible reportable arrangements, and keep abreast of legislative developments across the 28 E.U. Member States.