The directive was adopted by the European Parliament in March 2018, however, the Parliament’s vote on the proposed amendments may only have a limited impact on the final text to be adopted by the Member States, as the Council (Member States) is not bound by these recommendations.
By way of update, the Commission proposal was approved subject to the following amendments:
Objectives
The Directive shall aim to significantly limit the consequences of tax evasion and tax avoidance on the public accounts and to improve the functioning of the internal market through discouraging the use of cross-border aggressive tax planning arrangements. Emphasis was placed on better exchange of information on tax avoidance arrangements, given the various easy options that the use of intellectual property rights give for the artificial transfer of profits.
Automatic and mandatory exchange of information on cross-border arrangements
It is on the member states to take measures to ensure intermediaries provides information to tax authorities on reported cross border arrangements. On statutory audits, auditors will be subject to identification and disclosure obligations regarding potential breaches (including those of intermediaries) of the identification and disclosure obligations which the auditor has become aware. Time limit is 10 working days for filing with the competent authorities.
Waivers are appropriate from member states where, any reportable cross-border arrangement or series of such arrangements is entitled to legal professional privilege under the national law of that Member State. Each Member State shall take the necessary measures to require intermediaries, auditors and taxpayers to file information on reportable cross-border arrangements that are active on the date of entry into force of the Directive.
Reporting formats shall be succinct and easy to use so as not to hinder concrete action against reported practices.
Commission
The Commission shall be able to access relevant information so that it can monitor the proper functioning of this Directive and carry out its responsibilities under competition policies. It shall also publish a list of the reported cross-border arrangements that could potentially be used for tax avoidance purposes (without referencing the intermediary or taxpayer). Each year, Member States shall submit to the Commission a list of the cross-border arrangements that are regarded by the relevant tax authority as being compliant with this Directive.
Every two years, the Commission shall publish a draft update of the list of hallmarks that define aggressive tax planning to include any new or modified tax evasion and tax avoidance arrangements that will have been identified since the previous update to be brought into force within four months of the publication of the draft update.
Penalties
Appropriate penalties should be imposed to prevent and suppress potentially aggressive cross-border tax planning arrangements. Exchange of penalty information between states should be automatic.
Member States shall submit to the Commission and make publicly available a list of intermediaries and taxpayers on whom penalties have been imposed under the Directive, including names, nationalities and residences.
