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by Stefan Peters (comments: 0)

Official Draft Paper on the Obligation to Notify Cross-border Tax Arrangements Published

Background
The European Directive 2018/822/EU amending (sixth) Directive 2011/16/EU with regard to the mandatory automatic exchange of information in the field of taxation on notifiable cross-border arrangements ("DAC6") came into force on June 25th, 2018 and is to be implemented by the German legislator by  January 1, 2020.
An unofficial draft paper from the Federal Ministry of Finance (dated January 30th, 2019) has been circulating for several months.

On September 27th, 2019, the official draft paper of the Federal Ministry of Finance was published.

Essentials

  1. The obligation to report purely domestic tax arrangements - which is not excluded in the EU directive - is fortunately no longer contained in this official draft paper compared to the unofficial draft
  2. There have been no other significant changes in the duty of disclosure for cross-border tax arrangements in comparison with the unofficial draft paper by the Ministry of Finance
  3. The scope of the information to be provided by the intermediary released from the obligation of professional secrecy has been extended
  4. In addition to the previous registration number (so-called Arrangement ID), the German Federal Tax Office will also notify the intermediary of a so-called Disclosure ID

The obligation to report national tax arrangements is not included in this official draft paper. Nevertheless, it remains to be seen whether this will be taken up again later in the legislative procedure, e.g. by the Federal Council (Bundesrat).

There have been no significant changes in the duty of disclosure for cross-border tax arrangements compared with the unofficial draft paper previously released.

If there is a cross-border tax structuring - a registered tax type is affected, the tax structuring is cross-border in the sense of § 138d Para. 2 No. 2 of the draft General Tax Code and at least one mark in accordance with § 138e Para. 1 of the draft General Tax Code (with the so-called Main Benefit Test) or a mark in accordance with § 138e Para. 2 of the draft General Tax Code (without the Main Benefit Test) is fulfilled, the structuring must be reported in electronic form to the German Federal Tax Office.

The primary duty of notification still lies with the intermediary. What is new is that, in addition to the previous registration number (so-called Arrangement ID), which is intended to identify a specific arrangement, the intermediary will also be notified a so-called Disclosure ID by the German Federal Tax Office. The Disclosure ID serves to merge the intermediary's report and the user's report. In order to transfer the duty of disclosure from the intermediary to the user with regard to further personal information, it is now necessary for the user to be informed of the Disclosure ID in addition to the registration number.

Without the involvement of an intermediary, the user himself is obliged to report this. If, however, the intermediary has been released from the obligation of secrecy by the user, the intermediary is obliged to provide full notification.
The scope of the information that must be provided by the intermediary released from the obligation of confidentiality has been extended compared with the unofficial paper.

What is new is that in addition to the registration number, the Disclosure ID must now also be stated. When tax planning is implemented in another EU member state, the corresponding counterpart must be disclosed. The information must be included in the tax return in which the tax advantage of the tax structuring has an effect.
The German Federal Tax Office will conduct a separate hearing of the associations on the technical requirements for submitting notifications; this will clarify questions regarding file formats, interfaces and other questions.

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