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New BEPS Monitoring Group document: Observations on the “DAC 6” transposition process

This week, the third week of March, the Tax and Competitiveness Foundation has posted on its website the third “BEPS Monitoring Group” document.

Action 12: Monitoring of the transposition into spanish law of “DAC 6”

This monitoring group, created to continue the work carried out on the BEPS Action Plan (and the book published on this subject), made a commitment to monitor the latest developments resulting from the Action Plan, particularly potential impacts on legal certainty affecting tax operators.

Such circumstances clearly concur in Directive 2018/822 of the Council of 25 May 2018, which brings in new amendments to the Directive on Administrative Cooperation, imposing on “tax intermediaries” the obligation to declare certain operations that could be regarded as “potentially aggressive” tax planning.

This is a delicate matter, in which the balanced transposition of the regulation into internal legislation is essential to:

  • Allow internal regulations that are easy to understand and apply, assuring the fulfilment of management’s ultimate objectives, while limiting risks to legal certainty for taxpayers and other tax operators;
  • Avoid significant differences with respect to the regulations of other Member States that are detrimental to our system’s competitiveness, by establishing a more onerous information scheme than that of other States.

The exception to the obligation for intermediaries to report, envisaged by the Directive due to the impact of professional secrecy, is the touchstone of this new regulation and the practical effectiveness that is finally attributed to it (by the transposed Spanish legislation) will doubtless be an essential aspect of the transposition.

The Foundation’s document reflects the observations made in the Public Consultation process opened by the Directorate General for Taxation, which address those and other matters and mirror the Board of Trustees’ vision of the matter, to which special attention will have to be paid in the coming months.