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Netherlands: Mandatory disclosure of cross-border tax planning arrangements (DAC6)

Netherlands: Disclosure of cross-border tax planning

A bill to implement the EU Directive on mandatory disclosure (DAC6) has been presented to the Lower House.

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The EU Directive provides for the mandatory automatic exchange of information on reportable cross-border arrangements. The EU directive (DAC6), in principle, requires intermediaries (including so-called “auxiliary intermediaries”) to report potentially aggressive cross-border tax planning arrangements, so that this information can be exchanged between the tax authorities of the EU Member States. Due to the broad definition of intermediary, not only tax advisors will fall under this definition, but potentially also lawyers, accountants, notaries, financial advisors, banks, and trust offices for example. In certain circumstances the reporting obligation can shift to the taxpayer. 

An annex to DAC6 includes a number of hallmarks that act as indicators of a possible risk of tax avoidance. If a tax planning arrangement has one or more of these hallmarks, the arrangement must, in principle, be reported to the tax authorities of the relevant EU Member State. However, a number of these hallmarks will only trigger a reporting obligation if a “main benefit test” is also met. That is the case if it can be convincingly demonstrated that the most important benefit or one of the most important benefits that, given all the relevant facts and circumstances, can reasonably be expected from an arrangement is obtaining a tax benefit. 

The Netherlands must transpose DAC6 into national law by 31 December 2019. On the basis of the bill before the Lower House and the accompanying explanatory notes, the Dutch implementation appears to remain close to the text of the EU Directive in terms of its wording. With regard to the most important terms and the hallmarks, there is a one-on-one reference to the (annex to the) Directive. 


Read a July 2019 report prepared by the KPMG member firm in the Netherlands

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