18/05/20
In Brief
The document does not contain any guidelines in relation to the interpretation of the hallmarks and is mainly about practical aspects of the reporting obligations. It contains however useful information/confirmations.
Please also refer to our Flash News dated 23 March 2020 for further details as to the content of the DAC 6 Law as implemented in Luxembourg.
In Detail
In their publication, the LTA made a number of useful confirmations and comments as follows.
The LTA confirmed that they share the view already expressed by the “Commission des Finances et du budget” in the report that included the text of the Bill in its final form to be voted. More particularly, the LTA confirmed that the main tax benefit is not met (thus making an arrangement or transaction potentially not reportable) when the tax advantage concerned is obtained via an arrangement that is in line with the purpose or the aim of the applicable legislation and of the intention of the legislator. To determine if the arrangement is in line with this intention, all constitutive elements of the arrangement have to be taken into consideration in order to assess whether the arrangement, considered globally, corresponds or not to this intention. As a converse example, the main benefit test will be considered as met (and the arrangement or transaction therefore reportable) when it uses the nuances ("subtilités") of a tax system, or inconsistencies between two or several tax systems, in order to reduce the tax due.
Lawyers, audit and/or qualified accountants firms benefit from a waiver of their reporting obligations due to their professional secrecy.
Intermediaries exempted from their reporting obligations however have an obligation to inform, within 10 days as from the key date (see our previous Flash News for more details), each other intermediary or, in the absence of an intermediary, the taxpayer, of their respective reporting obligations. Such other intermediary or taxpayer will then have to file, within 30 days as from the same key date, the report to the Luxembourg tax authorities.
In this respect, the tax authorities have confirmed that:
The LTA confirmed that an intermediary that designs, markets, organises, makes available for implementation, or manages the implementation of a reportable cross-border arrangement (so-called “Promoters”) is not to be considered as a participant to the reportable cross-border arrangement unless such intermediary is itself active in the arrangement that he designed or if he managed the implementation for the benefit of the relevant taxpayer.
The LTA have indicated that an arrangement is made available when the intermediary has delivered to the taxpayer the concerned contractual documents or has made them accessible without an implementation being required.
In this respect, the LTA have specified that:
As to the reporting itself and as already communicated (see notably our Newsletter dated 2 April 2020), two options should be offered to the intermediaries / taxpayers in charge of the reporting:
a specific filing procedure via My Guichet (available in English, French and German),
a "drag and drop" of a specific XML file.
The procedures are available in French, German and English. As to the summary of the content of the reportable cross-border arrangement, details of the national provisions that form the basis of the reportable cross-border arrangement as well as any other free text fields must be provided in English only regardless of the language used for the process.
The LTA have also clarified that when the person doing the reporting is not aware of the information to compulsory declare, he has the possibility of fulfilling the fields as follows:
In conclusion
We expect the platform to be updated in due course to include further useful information.
We will continue to advise you of further improvements in the development of this platform, as it will be the key channel for DAC 6 reporting obligations.
DAC6 is an EU directive that introduces reporting obligations for a wide range of cross-border tax arrangements. Many EU countries have already aligned their national laws quite closely to the directive. Some countries went beyond it, adding extra requirements to their local laws. These differences may add complexity whenever international businesses set out to comply. Are you up for the challenge?
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Murielle Filipucci
Tax Partner, Global Banking & Capital Markets Tax Leader, PwC Luxembourg
Tel: +352 49 48 48 3118
Pierre Kirsch
Tax Partner and Authorised Manager of the PSF, PwC Regulated Solutions S.à r.l.
Tel: +352 49 48 48 4031