Strategizing International Tax Best Practices – by Keith Brockman

Recent developments include a political agreement reached by the ambassadors of the Member States to submit an amended proposal, with each Member State having to make a formal decision thereto, for deferral of the reporting dates.

  • The prior period, from June 25, 2018 to June 30, 2020 will be deferred to February 28, 2021 (from August 31, 2020)
  • For arrangements commencing July 1, 2020 subject to the 30-day reporting deadline, the 30-day period begins on January 1, 2021 and would include arrangements from July 1 through December 31, 2020.

Next steps will be a written procedure in the EU Council, followed by formal adoption.  If a Member State fails to respond to the proposal, the original reporting timelines will apply.

Dutch guidance has also been issued, providing further clarification.

https://globaltaxnews.ey.com/news/2020-5837-eu-council-ambassadors-reach-agreement-on-amended-proposal-for-deferral-of-mdr-filing-deadlines

 

NL: Mandatory Disclosure Rules/DAC6

The European Mandatory Disclosure Rules (MDR)/DAC6 Directive will come into effect on 01 July 2020. Following its implementation in the Netherlands, intermediaries and/or taxpayers have to report potentially aggressive international tax arrangements to the Tax and Customs Administration. This concerns arrangements that involve residents from various countries and that may be used to avoid tax.

On this page, you can read more about the following subjects:

Intermediaries virtually always have to report a potential tax avoidance arrangement

If you are an intermediary and you are involved in a potentially aggressive international taxarrangement, you have to report it. There are two exceptions to this rule. You do not have to report a potentially aggressive international tax arrangement in the following cases:

  • Another intermediary has already reported the tax arrangement and he has given you a reference number to prove it.
  • You have a legal professional privilege.

Note!

The DAC6 Directive applies to all intermediaries . For instance, tax consultants, lawyers, accountants, civil-law notaries, financial advisers, banks and trust offices.

Taxpayers sometimes have to report a potential tax avoidance arrangement themselves

The taxpayer for whom a potentially aggressive international fiscal arrangement is intended, has to report it himself in the following cases:

  • An intermediary from outside the European Union is involved in the artificial tax arrangement.
  • An intermediary who is involved in the artificial tax arrangement has a legal professional privilege, therefore, he does not have to report the arrangement.
  • No intermediary is involved in the tax arrangement.

When you are not sure if someone else has reported a potential tax avoidance arrangement

When in doubt, report it yourself.

When to report a potential tax avoidance arrangement

The DAC6 Directive has retrospective effect. Potentially aggressive international tax arrangements youare involved in between 25  June 2018 and 01 July 2020 must be reported between 01  July 2020 and31 August 2020.

Every arrangement you are involved in after 01 July 2020 must be reported within 30 days.

Which fiscal arrangements must be reported?

The DAC6 Directive provides a list of hallmarks. If a tax arrangement has one or more of these hallmarks, you have to report it. A guide line with more details and examples will be available soon.

Note!

The hallmarks have been set at a European level and may, therefore, be interpreted differently at times. If you are not sure if a tax arrangement is potentially aggressive, be on the safe side and report it anyway.

Which taxes does the DAC6 Directive apply to?

It applies to:

  • corporation tax
  • income tax
  • Payroll tax
  • dividend tax
  • inheritance tax and gift tax
  • most other taxes

It does not apply to:

  • VAT (turnover tax)
  • customs duties
  • excise duties
  • social insurance contributions
  • charges
  • fees

How to report potential tax avoidance arrangements

You can report them by means of the Cross-Border Arrangements Reporting form, in English. You can complete this form via the data portal of the Tax and Customs Administration from 01 July 2020.

Your report must include:

  • details about yourself
  • details about the taxpayer and his affiliated persons
  • a summary of the content of the artificial tax arrangement
  • the relevant hallmarks
  • the relevant national statutory provisions
  • the value of the artificial tax arrangement
  • the implementation date
  • the relevant EU Member States

After you have submitted your report, we will send you a reference number.

What happens if you don’t report?

You will risk a (high) fine.

More information

For questions about the mandatory disclosure legislation such as questions about the hallmarks, pleasecontact the MDR team of the Tax and Customs Administration by e-mail at MDR-team@belastingdienst.nl

If you have a question about submitting the Cross-Border Arrangements Reporting form, please send an e-mail to the Tax and Customs Administration Contact Centre at gegevensuitwisseling@belastingdienst.nl

If you are a software developer or if you are going to develop software for your own organisation to report potential tax avoidance arrangements, you can register at the Digital Messaging Support [Ondersteuning Digitaal Berichtenverkeer (ODB)] website of the Tax and Customs Administration for the necessary specifications, IT-related questions (for instance, about the required technical specifications of the various fields) and support. You can also contact the service desk at servicedesk.odb@belastingdienst.nl

Answers to frequently asked questions about the mandatory disclosure legislation are collected in the Mandatory Disclosure Rules/DAC6 Knowledge Database (only available in Dutch).

 

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