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14 January 20213 minute read

Global Tax Alert: Implementation of DAC6 in Spain

On 30 December 2020, one year after the deadline imposed by the European Union, the Spanish Legal Act 10/2020 was published in the Spanish official gazette implementing the Council Directive (EU) 2018/822 of 25 May 2018 (commonly known as “DAC6”), which regulates the mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements.

The Legal Act 10/2020 initiates the implementation of DAC6 by amending the Legal Act 58/2003 on General Taxation with the inclusion of the provisions required to comply with DAC6 as stipulated by said Directive. Although the main general aspects of this new legislation are already determined, the interpretation of certain practical points will depend on the future development of the relevant regulations.

The aim of DAC6 and of its Spanish response is to obtain information allowing to fight against tax avoidance and to discourage taxpayers to engage in aggressive tax planning arrangements. Such aim is pursued through the incorporation of three new reporting requirements: (i) filing information on cross-border arrangements that fulfill certain hallmarks; (ii) providing updates on certain marketable cross-border arrangements; and (iii) filing information about the use of both types of cross-border arrangements on Spanish territory.

The categories of hallmarks have not been included in any manner in the Legal Act 10/2020, but instead the new legislation references the entire Annex IV of DAC6. We will need to wait until the regulations are adopted and the Spanish tax authorities issue the appropriate guidelines allowing a better understanding of the different concerns already preoccupying the community of intermediaries and taxpayers.

Under the Legal Act 10/2020 intermediaries are not subject to the filing obligation of reportable arrangements if the reporting obligation would breach a legal professional privilege, regardless of the activity carried out by such intermediary and provided that the advice procured was of a neutral nature (i.e. with the sole purpose of evaluating the adequacy of the arrangement in light of the applicable laws, without enabling its implementation). The Legal Act 10/2020 furthermore stipulates a penalty regime, establishing three different infringements: (i) lack of filing; (ii) incomplete, inexact or false reporting; and (iii) paper filing when obliged to file by electronic means. Sanctions generally consist of a fixed fine in the amount of EUR2000 per datum or group of data, with a minimum of EUR4000, being the maximum amount the fees for each arrangement or the value of the tax impact derived from each arrangement (depending on whether the offender is the intermediary or the taxpayer, respectively).

Finally, in addition to the transitory provisions concerning the backfill reporting period, the Spanish legislation implementing DAC6 also introduces auxiliary reporting requirements between intermediaries and taxpayers for reporting waiving purposes, together with an specific penalty regime in case of lack of compliance.

Please contact the authors or your usual DLA Piper advisors for more information about DAC6.