On 30 December 2020, Law 10/2020 of 29 December, amending General Taxation Law 58/2003 of 17 December, in order to transpose the EU regulation known as DAC-6 (Council Directive (EU) 2018/822, of 25 May 2018), regarding the mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements, was published in Spain’s Official State Gazette (BOE, for its initials in Spanish).
This Directive introduces rules that require “tax intermediaries” and, in the absence thereof, taxpayers, to report to their respective tax authorities certain transactions that could amount to potentially aggressive tax planning, so that the tax authorities of the various Member States can subsequently exchange the information received.
Reportability under DAC-6 requires the existence of certain circumstances that are defined and described in the regulation itself. Not every matter with a tax component is reportable under DAC-6, and not every matter that is reportable under DAC-6 must necessarily include a tax component or impact.
In general, reportable transactions are those that are classified as cross-border arrangements and include any of the circumstances or hallmarks listed in the Annex to the Directive. Some of these hallmarks also require that it must be reasonably possible, having regard to all relevant facts and circumstances, to conclude that the main benefit or one of the main effects of the arrangement is the obtaining of a tax advantage.
Additionally, although these reporting obligations are enforceable on the date, after 1 January 2021, that is stated in the regulation implementing the Law (still pending approval), there is an obligation to report transactions carried out since 25 June 2018.
While waiting for the approval in Spain of the regulation implementing the Law and the disclosure formats for reportable transactions, at Uría Menéndez we have been monitoring the transposition process and the interpretative criteria published by the tax authorities of other European Union States since the approval of the Directive. This monitoring has meant that we have already been able to establish the necessary internal protocols to:
- analyse the matters on which we have advised since 25 June 2018, in order to identify those that are subject to the reporting obligation;
- inform our clients before the introduction of the reporting obligation of both the matters we believe to be subject to a reporting obligation and those in which a hallmark is present but we lack sufficient information to determine whether the main benefit test is fulfilled, and with respect to which we would therefore not be subject to the reporting obligation;
- when the matter is subject to the reporting obligation, inform our clients whether our reporting obligation is waived due to professional privilege and whether it is therefore another intermediary or, in the absence thereof, the client itself who must comply with the obligation;
- coordinate with our clients, on matters involving several advisors, regarding who will comply with the reporting obligation;
- comply with legal reporting obligations within the established time period, in the absence of prior reporting by another taxpayer;
- report within the legally established time period, to both the client and the other tax intermediaries participating in the transaction, that we have complied with the obligations to report to the Spanish Tax Authority (AEAT, for its initials in Spanish).
It is important to take into account that the absence of a statement on our part that a matter on which we have advised is reportable under DAC-6 does not necessarily mean that there is no such reporting obligation.
The experience and knowledge required for the provision of the services entrusted to Uría Menéndez may mean that it is not possible to ascertain the existence of circumstances causing a transaction to be reportable (for example, when our tax department does not have significant involvement in a transaction, or when the tax benefit is obtained in another jurisdiction, or when we only provide advice on part of a broader transaction).
Uría Menéndez is not subject to a reporting obligation in these cases because it does not satisfy the conditions to be considered a tax intermediary for purposes of DAC-6 with respect to that transaction, and not due to the objective circumstances of the matter.
For this reason, in order to comply with the obligations under DAC-6 it is also necessary for taxpayers who carry out cross-border transactions to have implemented their own internal DAC-6 application protocols, so as to be able to both identify reportable transactions and comply with the reporting obligation in the absence of a tax intermediary.
For these purposes, we place at your disposal our experience in the preparation and review of DAC-6 application protocols, as well as in the analysis of the hallmarks included in the Annex to the Directive.