Disclosure of tax planning schemes by intermediaries (proposal for an EU-Directive) - Proposed date of application 1 January 2019

2018 | roadmap

Cross-border tax arrangements bearing the tax avoidance hallmarks presented below should be notified by those intermediaries (tax advisors, accountants, lawyers, banks) who assist or advise on designing, marketing, organising or managing the tax relevant aspects of these arrangements. The reporting obligation could be waived for intermediaries if they are entitled to a legal professional privilege. If so, the obligation to file information on the arrangement will be the responsibility of the taxpayer. The information received will be exchanged automatically between Member States.

  • When a fixed percentage of the tax avoided is charged as fee, or when a fee is charged explicitly for tax avoidance services
  • Providing arrangements which use losses to reduce tax liability
  • The same asset is subject to depreciation in more than one jurisdiction
  • Converting income into other types of revenue which are taxed at a lower level
  • When mismatches occur between EU or national law and the taxation applied in a non-EU country
  • Where the transfers of payment across borders do not represent the true value of the assets bought
  • Arrangements that re-classify income in categories not subject to automatic exchange of information agreements
  • Use of jurisdictions with inadequate or weak anti-money laundering rules, including those which help to conceal beneficial ownership information
  • Arrangements which include reference to crossborder tax rulings that are not already being reported or exchanged
  • Tax arrangements sold with a confidentiality clause attached
  • Providing tax avoidance advice that has been standardized and made available to more than one taxpayer
  • Use of linked companies or entities with no substance and with circular transactions taking place between them
  • Deductible crossborder transactions based on the residency of the taxpayer
  • A payment mentioned in an arrangement is given a full or partial tax exemption in the jurisdiction where it should be taxed
  • Use of tax jurisdictions with no or low corporate tax rates, or which find themselves on the upcoming EU list of noncooperative tax jurisdictions
  • Relief from double taxation on the same income in different jurisdictions by more than one taxpayer
  • Use of companies and entities not covered by EU rules or other agreements on automatic exchange of information
  • Arrangements that do not conform to the "arms' length principle" or to OECD transfer pricing guidelines

Source: http://ec.europa.eu/

Theodor Artenie

Managing Director Tax

T: +4021 319 67 90
t.artenie@schoenherr.eu

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Anamaria Tocaci

Tax Manager

T: +40 2 131 96 790
a.tocaci@schoenherr.eu

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