On 13 March 2018, the EU's Economic and Financial Council agreed amendments to the Council Directive 2011/16/EU (the "Directive") aimed at tackling aggressive tax planning (see the announcement here and full text of the new provisions are here). These provisions broadly reflect Action 12 of the OECD's BEPS project.
Under the new regime, intermediaries that design, market, organise or manage cross-border tax planning schemes (eg tax advisors, accountants and lawyers in private practice and in-house) will be required to report to national authorities certain information in respect of tax planning schemes that are considered potentially aggressive. This report must be made within 30 days from the date after implementation of a reportable scheme (or the date after the scheme is made available or ready for implementation, if earlier). For marketable arrangements, intermediaries must thereafter provide updates every three months. The information collected will be logged on a centralised directory and automatically shared across EU Member States every three months.
The hallmarks listed in the Annex to the Directive will be decisive in whether a disclosure needs to be made, and these continue to be rather widely drawn and in places ambiguous.
Intermediaries that fail to comply with these reporting duties will face sanctions ranging from financial penalties to other measures to be decided at EU Member State level, such as ‘naming and shaming.’ The level of such penalties are also to be determined by each EU Member State on the basis of what it considers effective, proportionate and dissuasive.
The proposed amendments to the Directive are now in the process of being finalised in all official languages and will thereafter be fully adopted. EU Member States will have until 31 December 2019 to give the amended Directive national effect with reporting requirements to apply from 1 July 2020.
For more about the BEPS project, please see our articles: BEPS: OECD announces Multilateral Instrument will come into force (here), UK ratifies the Multilateral Instrument on BEPS (here), BEPS: Update on Multilateral Instrument (here), BEPS: Multilateral Instrument Published (here), Business Implications of BEPS (here) and Current BEPS Action Items (here). For more about reforms in cross-border taxation, please see our articles: EU proposals move ahead for a common corporate tax base (here), Europe Taxing the Digital Economy: could a turnover tax be on the horizon? (here), Taxing the Digital Economy: first steps by the UK (here), Public Input on Taxing the Digital Economy (here), Public Country-by-Country Reporting; Taxpayers' Rights (here), and Tax transparency - the UK goes the extra mile (here).
Co-authored by Elaine He.