20 April 20213 minute read

Starting shot for DAC6 reporting obligations in Spain

The Royal Decree 243/2021 dated 6 April 2021 (RD 243/2021) was published in the Spanish Official Gazette, further enhancing the implementation of DAC6 in Spain through the amendment of the General Regulations on Tax Proceedings, as approved by Royal Decree 1065/2007 dated 27 July 2007.

The provisions of the RD 243/2021 are in line with DAC6 and cover (i) the definition of reportable cross-border arrangement; (ii) the determination of the persons obliged to report in their capacity as intermediaries or relevant taxpayers ; (iii) the determination of when a reporting obligation falls within the competence of the Spanish tax authorities and relevant tie-breaker rules; (iv) the clarifications on certain hallmarks; and (v) the content and deadlines for the three different reporting obligations (i.e. initial reporting on cross-border arrangements, periodic update on marketable arrangements and reporting about the use of cross-border arrangements).

In respect to the hallmarks, it is worth noting that the RD 234/2021 foresees certain particularities.

As an example, it shall be considered that the main benefit test is met when the main effect or one of the main effects of a transaction is to obtain a tax saving, the latter being defined for these purposes as any reduction in the taxable base or tax quota, in terms of tax debt, including the deferral in the accrual of the same, that would have corresponded if the cross-border arrangement had not been carried out or when a taxable event is fully or partially avoided by means of the execution of said arrangement.

Likewise, the generation of tax losses, negative tax quotas, deductions or any other tax credit susceptible to offset or deduction in the future will be considered as a tax saving. In addition, when the arrangement involves associated enterprises, the determination of the existence of a tax saving shall be made considering the above mentioned effects in the context of the group of the associated entities, regardless of the jurisdiction of taxation. Other interesting particularity would be that in order to understand that a jurisdiction imposes corporate tax at the rate of zero or almost zero, a nominal tax rate below 1% will be required.

From a practical perspective, the reporting obligations will be dealt with through the filing of three different tax forms, which have been approved by Ministerial Order HAC/342/2021.

  • Form 234: This form shall be used for the initial reporting of cross-border arrangements. The deadline for its filing is limited to 30 calendar days from triggering the reporting obligation.
  • Form 235: Periodic update on marketable arrangements that shall be filed within one calendar month from the end of the calendar quarter in which a marketable cross-border arrangement has been made available subsequent to the same arrangement originally reported through form 234 or through a previous form 235.
  • Form 236: It shall be used for reporting on the use of a cross-border arrangement within the last quarter of the calendar year following the implementation of cross-border arrangements in Spain previously reported.

Finally, the RD 243/2021 establishes the backfill reporting period, determining a deadline of 30 calendar days commenced on 14 April 2021.

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