Pierre Moscovici – Photo EC
(BRUSSELS) – The EU Commission proposed Wednesday tough new transparency rules for intermediaries – tax advisers, accountants, banks and lawyers – who design and promote tax planning schemes for their clients.
The move follows recent media leaks such as the Panama Papers that have exposed how some intermediaries actively assist companies and individuals to escape taxation, usually through complex cross-border schemes.
The aim of the proposal is to tackle such aggressive tax planning by increasing scrutiny around the previously-unseen activities of tax planners and advisers.
The Commission is proposing to “hold responsible the go-betweens who create and sell tax avoidance schemes,” said the EU executive’s vice-president Valdis Dombrovskis: “Ultimately, this will result in greater tax revenues for Member States.”
“Today, we are setting our sights on the professionals who promote tax abuse,” said Financial Affairs Commissioner Pierre Moscovici: “Tax administrations should have the information they need to thwart aggressive tax planning schemes. Our proposal will provide more certainty for those intermediaries who respect the spirit and the letter of our laws and make life very difficult for those that do not.”
Cross-border tax planning schemes bearing certain characteristics or ‘hallmarks’ which can result in losses for governments will now have to be automatically reported to the tax authorities before they are used.
The Commission says it has identified key hallmarks, including the use of losses to reduce tax liability, the use of special beneficial tax regimes, or arrangements through countries that do not meet international good governance standards.
The obligation to report a cross-border scheme bearing one or more of these hallmarks will be borne by:
- the intermediary who supplied the cross-border scheme for implementation and use by a company or an individual;
- the individual or company receiving the advice, when the intermediary providing the cross-border scheme is not based in the EU, or where the intermediary is bound by professional privilege or secrecy rules;
- the individual or company implementing the cross-border scheme when it is developed by in-house tax consultants or lawyers.
Member States will automatically exchange the information that they receive on the tax planning schemes through a centralised database, giving them early warning on new risks of avoidance and enabling them to take measures to block harmful arrangements. The requirement to report a scheme does not necessarily imply that it is harmful, only that it merits scrutiny by the tax authorities. However, Member States will be obliged to implement effective and dissuasive penalties for those companies that do not comply with the transparency measures, creating a powerful new deterrent for those that encourage or facilitate tax abuse.
The new rules are comprehensive, covering all intermediaries, all potentially harmful schemes and all Member States. Details of every tax scheme containing one or more hallmarks will have to be reported to the intermediary’s home tax authority within five days of providing such an arrangement to a client.
The proposal ensures a harmonised EU approach to implementing the recommended mandatory disclosure provisions in the OECD’s Base Erosion and Profit Shifting (BEPS) project, as endorsed by the G20.
Next Steps
The proposal, which takes the form of an amendment to the Directive for Administration Cooperation (DAC), will be submitted to the European Parliament for consultation and to the Council for adoption. It is foreseen that the new reporting requirements would enter into force on 1 January 2019, with EU Member States obliged to exchange information every 3 months after that.
