As {News-2020-07-07/P/3-previously reported}, Germany decided to the surprise of many not to avail of the option to defer DAC6 reporting by up to 6 months. The optional nature of the possibility to defer DAC6 reporting is bound to create asymmetries with various consequences within the EU, and the Dutch tax administration posted a warning to Dutch intermediaries in relation to one such potential consequence in Germany.
Primary reporting under DAC6 lies with the intermediary and is shifted to the Relevant Taxpayer (RTP) in a number of situations, including in cases where the intermediary is prevented from reporting due to legal professional privilege. The standard rule requires an intermediary established in the EU to notify the RTP as to whether or not it will comply with the primary reporting obligation, and the RTP is relieved from reporting only if in receipt of such notification. The asymmetrical implementation of the deferral option results, however, in asymmetrical deadlines in the Member States which adopted the option versus those which did not (Austria, Germany and Finland), and thus in potential failures to meet the deadlines.
According to the Dutch tax authorities, it appears that Germany considers that where an intermediary established in another Member State benefits from the deferral and consequently does not report in its home country an arrangement involving a German RTP and does not issue the required notification to the German RTP, then the German RTP is required to report in Germany within the original deadlines. The reported position of Germany can be illustrated as follows:
- A Dutch intermediary engages in a reportable arrangement involving a German RTP on 13 August 2020;
- Under ordinary circumstances, the Dutch intermediary is required to report the arrangement in the Netherlands and issue a notification to the German RTP by 14 September 2020;
- However, because the Dutch intermediary benefits from a 6-month deferral in the Netherlands, the reporting and notification are deferred until the end of January 2021;
- In contrast, the original deadline remains unchanged in Germany which did not adopt the optional deferral;
- As a result, the reporting requirement shifts to the German RTP and the latter is required to report in Germany by 14 September 2020.
The position appears to derive from a literal interpretation of the condition that an RTP is relieved of any reporting obligation only on receipt of a notification from the intermediary.