Administrative cooperation in the field of taxation

SUMMARY OF:

Directive 2011/16/EU on cooperation between EU Member States’ tax administrations

Amending Directive (EU) 2021/514

WHAT IS THE AIM OF THE DIRECTIVES?

• Directive 2011/16/EU (directive on administrative cooperation — DAC) establishes a system for secure administrative cooperation between the national tax authorities of the European Union (EU) Member States and lays down the rules and procedures for exchanging information for tax purposes.
• Amending Directive (EU) 2021/514 (commonly known as ‘DAC7’) introduces new rules to improve these cooperation procedures and includes the reporting of sales and services carried out via digital platforms.

KEY POINTS

The DAC applies to all taxes, apart from the following:

• value added tax (VAT) and customs duties;
• excise duties covered by other EU legislation on administrative cooperation between the Member States;
• compulsory social security contributions payable to a Member State, to a subdivision of a Member State or to social security institutions established under public law.

This was amended in DAC7, to clarify that the information exchanged under the DAC7 directive can be used for the administration, assessment and enforcement of VAT and other indirect taxes.

The relevant national authority must establish a central liaison office whose role is to:

• maintain contact with the European Commission and with similar bodies in other Member States, either directly or through designated departments and officials;
• process requests for information.

Requests for information must be dealt with in the following ways.

• They must be confirmed, if possible electronically, within 7 working days.
• They must be answered as quickly as possible and within 3 months of receiving the request. If the requested authority is unable to do so in time, it must inform the applicant authority immediately and, in any event, within 3 months of the request. The period may not exceed 6 months from the date of the request.

Mandatory automatic exchange of information

As of 2015, national authorities must, at least once a year and where available, automatically provide relevant Member States with information on the following categories of income and capital for residents in another Member State:

• employment income
• directors’ fees
• life insurance schemes
• pensions
• ownership of, and income from, immovable property.

Amending Directive (EU) 2021/514 adds a new category of income derived from royalties to the above list. Before 1 January 2024, the Member States must inform the Commission of at least four categories for which their competent authorities will communicate, by automatic exchange, to the competent authority of any other Member State, information about residents of that other Member State. That information shall relate to taxable periods starting on or after 1 January 2025. As of 2017, national authorities must automatically provide relevant Member States with information on financial accounts held by residents in another Member State and on advance cross-border rulings and advance pricing arrangements.

Also as of 2017, under Directive 2016/881/EU, national authorities must automatically provide relevant Member States with information on country-by-country reports — reports filed by multinational groups with operations in the EU. These include information for every tax jurisdiction in which the group does business on the amount of revenue, the profit before income tax, the income tax paid and accrued, the number of employees, the stated capital, the retained earnings and the tangible assets.

As of 2018, authorities must also be given access to beneficial ownership information collected pursuant to Directive (EU) 2015/849, the EU’s anti-money laundering legislation (see summary).

As of 2020, national authorities must automatically provide Member States with information on reportable cross-border arrangements. Directive (EU) 2020/876 provided for an optional maximum extension of 6 months for the reporting deadlines for mandatory disclosure requirements for intermediaries and relevant taxpayers under the DAC6 — amending Directive (EU) 2018/822.

New reporting obligations for digital platforms

Amending Directive (EU) 2021/514 also introduces new reporting obligations on operators of EU and non-EU digital platforms that allow certain sellers to be connected to other users in order to perform the following cross-border or domestic activities:

• property rentals
• personal services
• sale of goods
• rental of any mode of transport.

EU digital platforms that fulfil certain conditions in more than one Member State may elect to fulfil their reporting obligations in one such Member State. Non-EU digital platform operators that have a reporting obligation under DAC7 need to register in a Member State.

Non-EU digital platform operators may be exempted from their DAC7 reporting obligations if they have to fulfil equivalent reporting obligations in a qualified non-Union jurisdiction — and that jurisdiction exchanges this equivalent information with all relevant EU Member States, in line with a specific agreement.

A new Annex V contains due diligence procedures, reporting requirements and other rules for platform operators.

Spontaneous information

National authorities must spontaneously provide information to their counterparts elsewhere in the EU as soon as possible, and no later than 1 month after it becomes available, if:

• they believe there may be a tax loss in another Member State;
• a person in one country receives a tax reduction or exemption that would increase their tax liability in another country;
• business dealings between two people in different countries could lead to tax savings for either or for both;
• artificial profit transfers within groups of enterprises could lead to tax savings;
• they receive information from another authority that could be relevant in assessing their tax liability.

National authorities:

• may agree, in two or more Member States, to carry out simultaneous controls of taxpayers in whom they share an interest;
• that were asked to provide information or that provided information spontaneously, may request feedback from those using it — and this should be provided within 3 months;
• that receive information from a non-EU country may share this with their EU counterparts if they consider it to be of use — as long as they have advised the country in question of their intention to share it (and that country has the right to refuse).

All information shared between national authorities is subject to official secrecy.

Every year, national authorities must provide the Commission with data on the volume of automatic exchanges of information and, where possible, must assess the related costs and benefits.

Joint audits

Amending Directive (EU) 2021/514 includes a new section devoted to clarifying the legal framework and principles that apply to the conduct of joint audits between two or more Member States. Member States are required to adopt and publish these rules, by 31 December 2023, and to apply them from 1 January 2024 at the latest.

FROM WHEN DOES THE DIRECTIVE APPLY?

• Directive 2011/16/EU has applied since 11 March 2011 and had to become law in the Member States on 1 January 2013.
• Amending Directive (EU) 2021/514 has to become law in the Member States by 31 December 2022 and its rules apply from 1 January 2023.

BACKGROUND

• Faced with the increasing mobility of taxpayers, more cross-border transactions and the arrival of new financial instruments, national tax administrations must increase administrative cooperation to ensure tax compliance and reduce tax evasion, tax avoidance and tax fraud.
• For further information, see:
  • Administrative cooperation in (direct) taxation in the EU (European Commission)

MAIN DOCUMENTS

Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ L 64, 11.3.2011, pp. 1–12).

Successive amendments to Directive 2011/16/EU have been incorporated into the original document. This consolidated version is of documentary value only.

Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation (OJ L 104, 25.3.2021, pp. 1–26).

last update 06.12.2021