In 2014, more than 50 countries, including the EU Member States, Switzerland and Liechtenstein, signed a multilateral agreement to automatically transmit data on financial accounts of taxpayers resident in another country to that country for tax periods from 2016 onwards, starting in September 2017. The number of user states has now risen to over 100. On the OECD website, a current list retrievable.

Pioneer of the automatic exchange of information: FATCA

The model for the Automatic International Exchange of Information (AEOI) with the Common Reporting Standard (CRS) is the Foreign Account Tax Compliance Act (FATCA), which has been in force in the USA since 18 March 2010. The aim of the law is to curb tax evasion by US taxpayers outside the USA with US investments. It is a national US law that solely serves national interests. If certain reporting and due diligence obligations are not fulfilled, a penalty tax will be levied at the US source.

Although the objective differs from that of AEOI, FATCA is the model for the technical organisation of the exchange of information. Numerous definitions and obligations under FATCA have been incorporated into the CRS.

Differences to FATCA

The CRS is based on reciprocity, whereas under FATCA only information is collected and reported to the USA, but none has to be passed on from the USA to other countries. In contrast to FATCA, financial institutions do not have to register with the respective foreign tax authorities, but have to deal with their respective national tax authorities. The CRS only bases the question of who information is to be exchanged on the person's place of residence and not - like FATCA - on their nationality. Penalty taxation is not provided for under the CRS, but may result from national regulations.

Schedule CRS

There are two groups of CRS users, the "early adopter" countries and the other countries.

The early adopters, a total of 53 countries, including Germany, began collecting information in January 2016. The first exchange of information between the tax authorities of the participating countries then took place in September 2017.

The other countries, including Switzerland and numerous island states that had earned a reputation as tax havens, began collecting information in January 2017 and then exchanged the first data in September 2018.

Interestingly, the USA is not a party to the international exchange of information; however, there are intergovernmental agreements. Without these, the USA is left with a one-way flow of information to the USA.

The reporting deadlines for early adopters differ depending on the persons concerned, the date the account was opened and the account balance.

Notification of natural persons

A distinction is made between financial accounts as follows:

For legacy accounts opened before 1 January 2016, a distinction must be made according to the account balance as at 31 December 2015: if this was over USD 1 million, it is a high-value account that must be identified by the account-holding financial institution by 31 December 2016; the first exchange of information will take place in September 2017.

Accounts with a balance of up to USD 1 million as at 31 December 2016 are low-value accounts and must be identified by 31 December 2017; the first exchange of information will take place in September 2018.

Accounts opened after 31 December 2015 must be identified immediately by the financial institutions and reported in September 2017.

Notification of legal entities

A distinction must also be made between the opening date and the balance for legal entity accounts:

Accounts opened before 1 January 2016 with a balance of up to USD 250,000 do not have to be identified and reported. Existing accounts with a balance of more than USD 250,000 as at 31 December 2015 must be identified by the financial institutions by 31 December 2017 and will be reported in September 2018.

The same applies to new accounts opened after 31 December 2015, with the exception that these must be identified immediately.

Procedural issues

In Germany, the lead agency for the AEOI is the Federal Central Tax Office ("BZSt"). It collects information for foreign countries about their taxpayers with accounts in Germany and receives information from foreign countries about German taxpayers, which it passes on to the state tax authorities. The BZSt website publishes an annual List of countries with which there is an exchange.

The BZSt can also impose fines of up to EUR 50,000 for breaches of reporting obligations by financial institutions. A breach of duty can be realised through the omission of a report, an incorrect or incomplete report or an untimely report.

At EU level, these provisions were incorporated into the EU Administrative Assistance Directive. As a result, Luxembourg and Austria, which previously avoided the exchange of information by paying a flat-rate, anonymous tax on the interest income of non-EU taxpayers, must now exchange information in full with the other EU member states for the first time.

Your TAXGATE team offers support on legal issues and notifications in connection with the AEOI. This includes, among other things, the review of previously omitted declaration obligations and the preparation of corrected tax returns.

This article is part of a series. You can access the other parts here.

Markus Betz is a lawyer and tax consultant at TAXGATE, a tax law firm specialising in transactions, investments and tax compliance.