Is your business ready for DAC 6, the EU Mandatory Disclosure Rules?

Every company should begin preparing for DAC 6 immediately

The EU Council Directive 2018/822 concerning cross-border tax arrangements, known as DAC 6, will impact a range of businesses when it comes into full effect in July 2020. Professional advisers, service providers and multinational groups will all be affected.

DAC 6 applies to cross-border tax arrangements which meet one or more specified characteristics or hallmarks and which concern either more than one EU country, or an EU country and a non-EU country. It mandates a reporting obligation for these tax arrangements whether or not the arrangement is justified according to national law.

Failure to comply with DAC 6 could mean facing significant sanctions under local law in EU countries and reputational risks for businesses, individuals and intermediaries.

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Navigating the DAC 6 rules

DAC 6 is widely drafted and captures a range of transactions, not just those involving potentially aggressive cross-border tax planning. As a result, many questions, issues and challenges will be encountered in navigating the rules.

Ordinary commercial transactions may be reportable

While DAC 6 is a tax reporting obligation, several of the hallmarks apply whether or not a tax advantage is a primary benefit of the arrangement. Many everyday commercial transactions could potentially be reportable even in circumstances where they have no tax motive and where they do not produce any tax benefit.

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Who needs to report transactions under DAC 6?

The obligation to report primarily rests with the 'intermediary'. An intermediary will often be a professional services firm but in many cases could extend beyond such firms to include:

  • Service companies within large groups which provide professional advice to other related companies
  • External corporate service providers
  • Banks
  • Private equity houses
  • Investment funds
  • Valuation experts

Legal professional privilege does not provide a full exemption from the rules for law firms. Legal advisers may also have reporting obligations where their advice covers a cross-border arrangement that meets one or more of the hallmarks.

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Understanding the nuances of DAC 6

Determining whether an arrangement is reportable presents challenges for tax experts, let alone business advisors who do not have a tax background and who may not be well-versed on some of the concepts enshrined in DAC 6.

Questions that might arise:

  • Does the arrangement concern more than one EU Member State, or an EU Member State and a third country?
  • Where are participants in the arrangement tax resident and how is tax residence determined? How does this apply to partnerships or other transparent entities?
  • Does the arrangement meet at least one of 15 widely drafted hallmarks, of which only seven contain the "main benefit test"?
  • Where the main benefit test is concerned, how do you objectively assess whether obtaining a tax advantage is "one of the main benefits" which a person may reasonably expect to derive from the arrangement?
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Reporting in more than one country

An arrangement could be reportable in more than one EU Member State. However, rules are not identical across the Member States. Some Member States, such as Poland, have gone beyond the minimum standard.

Even in circumstances where Member States have effectively transposed DAC 6 into national law, the tax authorities in those states may not necessarily align on the interpretation of particular provisions.

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Collecting and reporting information

The requirement to complete DAC 6 reporting within a 30-day time frame presents challenges in terms of data collection and assessment of reportability.

It will be vital to ensure that information captured in relation to transactions, particularly where it is highly sensitive, is stored and transmitted to tax authorities securely. For example, in the case of a pre-sale restructuring or where data is protected by GDPR.

Given the potentially significant penalties for non-compliance, it will be essential to demonstrate to tax authorities that appropriate robust controls and systems are in place to identify and report all reportable cross-border arrangements to the tax authorities.

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Review of transactions dating back to 2018

DAC 6 rules apply retrospectively to reportable cross-border arrangements where the first step of implementation arose during the period from 25 June 2018 and 30 June 2020. If this applies to your business, it will be necessary to review a potentially large volume of historical projects in those 24 months, despite the absence of guidance on the rules in the period.

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Engagement with intermediaries and taxpayers

Many cross-border arrangements may, by their nature, involve multiple intermediaries. Rules may vary between jurisdictions. This may lead to differing views between intermediaries, or between intermediaries and the taxpayer, as to whether an arrangement is reportable. It may be challenging to come to a consensus view. Therefore, your governance must ensure that you can conclude your position as to whether you must report.

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Our DAC 6 services

Our DAC 6 team brings together specialists in tax, people, processes, data and technology. We help our clients understand this complex piece of legislation and its broader tax policy context. We advise on how to implement effective controls and processes to ensure all reportable cross-border arrangements are identified, collated and managed.

Risk assessments

Building upon our experience and in-depth market knowledge, we can perform an analysis of your business' activities and help identify areas where you may have reporting obligations.

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Governance framework

We can help you to develop a comprehensive, documented governance framework. We can help you define roles and responsibilities concerning the reporting obligations and identify and manage risks.

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Data management

We can support you in the effective and efficient collation, analysis and storage of the data you need for reporting.

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Reporting

We can assist you in fulfilling multiple reporting requirements using technology solutions. We can help you process data sets through the DAC 6 reporting mechanism and put it into the required XML schema. We can also help you to prepare the necessary paperwork.

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Training

We can provide on-site or online workshops for your staff to educate them on how to identify relevant transactions on an ongoing basis.

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Your digital DAC 6 solutions

We have developed two technology solutions to help organisations comply with DAC 6. Our tools are especially useful for organisations involved in a significant number of transactions across various Member States that involve several business units.

Smart Reporting Tool

At PwC, we have developed an entirely web-based solution to help clients assess their reporting obligations, capture the required information and manage their filing obligations. The DAC 6 Smart Reporting tool is systematic, structured, secure and auditable.

It has been created with assistance and input from PwC DAC 6 specialist teams from across Europe. The technology allows you to navigate rules across all jurisdictions and helps you understand the requirements in each country in which you operate. It identifies divergences in the rules and their interpretation in those jurisdictions.

Please reach out to us to arrange a demonstration.

 

Compare Tool

Our DAC 6 Compare tool gathers together valuable views and insights from our DAC 6 Central Expert Group. It collates our understanding of the interpretation of the directive from the perspective of all EU Member States.

The Compare tool contains up-to-date information on the local implementation of DAC 6 and guidance from each jurisdiction.

It also facilitates country comparisons to allow quick identification of differences across Member States. The tool includes details of additional requirements introduced by some countries which go beyond the scope of DAC 6.

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Contact us

Denis Harrington

Partner, PwC Ireland (Republic of)

Tel: +353 1 792 8629

Email

Joe Conboy

Partner, PwC Ireland (Republic of)

Tel: +353 1 792 6476

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Colin Smith

Partner, PwC Ireland (Republic of)

Tel: +353 1 792 7971

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Fiona Carney

Director, PwC Ireland (Republic of)

Tel: +353 1 792 6095

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