Dutch DAC7 implementation: further clarification on advertising exemption and reportable amounts

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Background

As of 1 January 2023, both EU and non-EU digital platforms will be obliged to verify and report information of sellers active on their platform to the tax authorities based on improvements made to the Directive on administrative cooperation in the field of taxation (“DAC 7”). We refer to our DAC7 website for a complete overview of the new rules.

The bill aiming to implement the changes in Dutch national legislation was adopted in the Lower House of Parliament on 10 November 2022. Currently, the bill is pending in the Senate for consideration and adoption. The bill needs to be implemented on 1 January 2023.

Members of the Senate have asked the Dutch Secretary of Finance to clarify two substantive points of the new regulations regarding scope and information to be reported: i) what constitutes software that merely displays advertisements and therefore is excluded from the reporting obligation and ii) the amount that need to be reported by platforms. On 25 November 2022, the Dutch Secretary of Finance sent an answer (‘memorie van antwoord’) to the Senate.

Scope

First, the Secretary elaborates on the difference between a platform (“DAC7 platform”) and a website that only displays advertisements for DAC7 purposes.

Platforms that merely list or advertise a relevant activity are explicitly excluded from the DAC7 reporting obligations. This so-called “advertising exemption” means that software that only enables the offering or the advertising of a relevant activity (i.e. the sale of goods, the rental of immovable property, personal services, the rental of any mode of transport) by users without any further intervention, is considered not to be a platform in scope of DAC7. As a consequence, no reporting obligation exists.

As an example the Secretary mentions websites which offer or display ads that could be listed under the category of relevant activities, but where the software has no further involvement, such as a chat function. In this case, it is not possible for the user to contact the seller via that software.

This software differs from a DAC7 platform in the sense that a DAC7 platform allows sellers to be connected to other users for the purpose of carrying out a relevant activity, directly or indirectly, to such users. As a result it does more than merely offering advertisements without further intervention. Such a platform has a reporting obligation if that platform knows or can reasonably know that a transaction has taken place, and also knows or can reasonably know the amount of the consideration involved. Even if a transaction takes place outside a platform (for example through cash payment), a platform can meet these requirements, for example because feedback is provided by the seller or the user.

As a result, software qualifies as a DAC7 platform if it, besides offering or displaying adds, also:

1. offers a chat function, and
   
2. has knowledge about transactions taking place, and
3. has knowledge about the amount of consideration

The Secretary adds that a platform does not need to report a transaction that, as a result of an advertisement, has led to a transaction taking place outside a platform if it has no knowledge about this transaction taking place and the amount of consideration. No external research or new procedures by the platform are necessary and there is no overlap with the Digital Services Act.

Information to be reported

Secondly, the Secretary also discusses the situation if the amount of consideration that a DAC7 platform operator passes on to the Tax Authorities is not the actual amount that the seller on that platform has received from that platform (e.g. in cash) and which party bears the burden of proof of the consideration.

The Secretary emphasizes that a DAC7 platform operator is obliged to send the information that it reports to the tax authorities also to its sellers. In such a case, sellers must themselves include the correct amount of income in their tax return, especially when it deviates from the amount previously reported by the DAC7 platform.

In any case, it is important that the tax authorities know via the platform operator that a seller has received income via a platform, and also how much that income amounts to approximately. If it turns out that the amount reported to the tax authorities deviates from the amount that a seller indicates to have received, the tax authorities can conduct further investigations and might, for example, ask for more information or supporting evidence.

Finally

We note that the Secretary confirms that he will not respond to all of the questions raised by the Dutch Order of Tax Advisors (in which Deloitte also participates). For now, many important questions relevant for implementing the DAC7 unfortunately remain unanswered. We are trying to obtain more clarity on these questions.

If you have any questions about the above or other questions about DAC7, please contact your advisor.