Proposal EU: intermediaries must disclose potentially aggressive tax arrangements
On 21 June 2017, the European Commission submitted a proposal for a Council Directive (the proposal) introducing mandatory disclosure rules for intermediaries concerning reportable cross-border tax arrangements. The proposal also provides for an automatic exchange of the reported information to other Member States.
The proposal should be seen in the light of the many transparency initiatives that have been launched by the EU with as principal goal to curb the use of alleged aggressive tax planning arrangements.
It places an obligation on intermediaries to report potentially aggressive tax planning arrangements which have a cross-border dimension, i.e., situations in either more than one Member State or a Member State and a third country. The proposed regime has similarities to the existing UK ‘disclosure of tax avoidance schemes system’ (DOTAS).
The disclosure obligation applies to individuals and entities identified as ‘intermediaries’, who are resident or based in a Member State or registered with a professional association related to legal, tax or consultancy services in a Member State. The definition of intermediaries is very broad, comprising any person responsible for designing, marketing, organizing and managing the implementation of the tax aspects of a reportable cross-border arrangement. Also persons who provide, directly or through related persons, material aid or assistance in connection with the arrangement fall within the scope of intermediaries. In case there is no intermediary because a taxpayer designs and implements a scheme in-house, or the intermediary is not within the EU, or is under legal profession privilege, the obligation to disclose shifts to the taxpayer who uses the arrangement.
Disclosure within 5 days
The proposal provides that intermediaries must disclose the arrangements within 5 days beginning on the day after such arrangements become available to a taxpayer for implementation. In case the disclosure is shifted to the taxpayer, the arrangement must be reported within 5 days beginning on the day after such arrangement has been implemented.
The failure to comply with the disclosure rule will be subject to penalties determined in accordance with domestic law of Member States.
The failure to comply with the disclosure rule will be subject to penalties determined in accordance with domestic law of Member States. The subsequent automatic exchange of information on the targeted arrangements among tax authorities will happen every quarter.
Entry into force
According to the text of the proposal, the entry into force is scheduled for 1 January 2019. However, it may apply retroactively to arrangements that have already been implemented between a starting date still subject to political agreement and 31 December 2018.
The proposal has the legal form of an amendment to the Directive on administrative cooperation in the field of taxation (2011/16/EU, of 15 February 2011). The proposal will now be subject of discussions within the ECOFIN Council.
We will keep you updated on further developments on this topic.
RonaldWijsTax adviser Partner
Ronald Wijs is a senior partner of the law firm Loyens & Loeff in Zurich, Switzerland. He has broad experience in European cross-border corporate tax planning, in particular involving the Benelux countries (Belgium, The Netherlands, Luxembourg), Switzerland, France and Germany.T: +41 43 266 55 55 E: firstname.lastname@example.org