In mid-2017, the European Commission published a proposal for a Council Directive amending Directive 2011/16/EU (Automatic exchange of information in the field of taxation on reportable cross-border schemes - "DAC6") was presented. "Intermediaries" (in particular accountants, auditors and lawyers) are to be obliged to report information on certain tax arrangements to be disclosed to the tax authorities. ECOFIN reached an agreement on 13 March 2018. The member states have until 31 December 2019 to transpose the directive into national legislation.

The Federal Ministry of Finance (BMF) has now presented a proposal for the implementation of the DAC6 Directive as a "discussion draft". The main points of this draft law can be summarised as follows:

  • Essentially 1:1 realisationof the DAC6 directive.
  • The duty of disclosure only applies to cross-border  (Deviation from State draft on § 138d AO)
  • Not only model designs are to be indicated (deviation from State draft on § 138d AO)
  • Applicable to income taxes and inheritance taxes; VAT is excluded
  • Obligation generally with the intermediary; exception: professional secrecy law (e.g. German tax consultant): Commitment for notification is transferred to the taxpayer, provided that the taxpayer is informed of his notification obligation
  • Notification with identifying information about the taxpayer to the competent tax authority. Tax authorities automatically exchange the information obtained on cross-border tax arrangements with the authorities of other Member States
  • Distinction between tax arrangements that are reportable (i) in principle or (ii) only in connection with the so-called main benefit test (see below)
  • Main benefit test (one of the main advantages of structuring: obtaining a tax advantage). Evidence to the contrary in the form of compelling economic reasons for the specific structuring of a transaction
  • Application from 01.07.2020if the first step of a notifiable cross-border transaction Tax planning after 24 June 2018 was realised.

The legislator is obliged to transpose the DAC6 Directive into national law. Due to the aforementioned application regulations, taxpayers and intermediaries must already check whether reportable cross-border tax arrangements have been advised. It is therefore advisable to implement a corresponding tax compliance system promptly, as the retrospective reporting obligation for arrangements will entail a large administrative burden.

Yours TAXGATE Team is available at any time to provide you with information on notification obligations.