EU Council agree on optional extended DAC 6 deadlines | Deloitte Netherlands

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EU Council agrees on optional extended DAC 6 deadlines

Member states should now swiftly communicate their positions, since DAC 6 applies as from 1 July 2020. The Netherlands has already opted for a six-month delay.

25 June 2020

On 24 June 2020, the EU Council reached agreement on an optional six-month delay to the reporting deadlines for intermediaries or relevant taxpayers under EU Directive 2018/822 (referred to as “DAC 6”), and a delay to the exchange of information under DAC 6 until the beginning of 2021. Member states opting for the extended deadlines will need to implement the rules into their domestic laws as soon as possible, since the original directive becomes effective on 1 July 2020. Since the delay would be optional, this may result in EU member states having different reporting deadlines for DAC 6, and a potential source of complexity and difficulty for cross-border EU businesses.

Background

DAC 6 requires intermediaries (or, under certain circumstances, relevant taxpayers) to provide information on reportable cross-border transactions to the appropriate tax authorities. The tax authorities, in turn, must exchange information with their European counterparts through an EU portal.

Arrangements that must be reported are those that meet one or more of the hallmarks listed in the annex to the directive. In accordance with the current provisions of DAC 6, as from 1 July 2020, arrangements that fall within the scope of the directive must be reported within 30 days after the arrangement is made available for implementation, or is ready for implementation, or the first step in the implementation has taken place. Information on arrangements for which the first step in the implementation takes place from 25 June 2018 to 30 June 2020 must be reported by 31 August 2020.

Optional extended reporting deadlines

The European Council has agreed an extension of up to six months to the reporting deadlines, and also has been granted authority for a further extension for a maximum of three additional months, should COVID-19 circumstances persist. However, member states could continue to apply the original deadlines, since the directive only foresees in an optional delay.

Member states would have the option to postpone for six months the deadlines for communication and exchange of information provided The new reporting deadlines for reportable cross-border arrangements are as follows:

  • Filing of the information on the pre-phase by 28 February 2021 (instead of 31 August 2020) for reportable cross-border arrangements the first of step of which was implemented between 25 June 2018 and 30 June 2020.

Where a member state opts for the extended pre-phase reporting deadline, this would have several other (non-optional) consequences, as follows:

  • The automatic exchange of information from the pre-phase must be undertaken before 30 April 2021;
  • Where a reportable cross-border arrangement is made available for implementation, or is ready for implementation, or where the first step in its implementation has been made, between 1 July 2020 and 31 December 2020, the 30-day reporting deadline starts on 1 January 2021. This applies both to intermediaries and assistant intermediaries; and
  •  The first periodic report for marketable arrangements must be made before 30 April 2021.

Consequently, there are three different periods and respective deadlines to consider, namely:

  • Historical reporting: 25 June 2018 to 30 June 2020;
  • Transition period: 1 July 2020 to 31 December 2020; and
  • Regular application: As from 1 January 2021.

Now it’s up to the EU member states

As the Directive only foresees in an optional deferral, it is now up to the individual member states to take a position in whether they want to apply the extended reporting deadlines. Eight EU Member States, among which The Netherlands, have already communicated that they will opt for the extended reporting deadlines for six months. Finland mentioned that it will not apply the extended deadline. A daily updated overview of member states opting in or out can be found here.

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