The sixth amendment (EU-2018/822) of the EU directive on administrative cooperation (aka: DAC6) requires member states to disclose aggressive cross-border tax arrangements (CBA’s). These disclosures will be placed in a central EU directory to be reviewed and used by relevant member states.
The primary obligation to file a CBA lies with the intermediary that designs, markets, organises or makes available for implementation or manages the implementation of a reportable CBA. This obligation also exists for intermediaries who, directly or by means of other persons, provided aid, assistance of advice with regard to the aforementioned activities.
Additionally, an intermediary has to:
- be resident for tax purposes in a Member State; or
- have a permanent establishment in a Member State through which the services with respect to the arrangement are provided; or
- be incorporated in, or governed by the laws of, a Member State; or
- be registered with a professional association related to legal, taxation or consultancy services in a Member State.
In principle, all intermediaries should file the CBA. Any relevant intermediary shall only be exempt from filing the information to the extent that it has proof, that the same information has already been filed in another Member State or by another relevant intermediary.
If there is no intermediary (within the EU) or the intermediary is not legally required to file a reportable CBA (legal privilege), this responsibility shifts to the relevant taxpayer who uses a CBA.
It is possible that multiple relevant taxpayers are involved in a CBA. In that case the relevant taxpayer that is to file the CBA is the one that:
- agreed the reportable cross-border arrangement with the intermediary; or
- manages the implementation of the arrangement.
Any relevant taxpayer shall only be exempt from filing the information to the extent that it has proof, that the same information has already been filed by another relevant taxpayer.
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