The main purpose of EU Directive 2018/822 (DAC 6) is to prevent the promotion and use of potentially aggressive tax planning schemes by intermediaries and users.
The Directive requires intermediaries (including lawyers) (see Who the rules apply to) to report certain cross-border arrangements to tax authorities of EU member states. Those tax authorities will then exchange relevant information with each other on a quarterly basis.
On 9 January 2020, the International Tax Enforcement (Disclosable Arrangements) Regulations 2020 (the Regulations) were made. These implemented EU Directive 2018/822 into UK law. On 1 July 2020, HM Revenue and Customs (HMRC) published guidance on the rules.
On 9 July 2020, amending Regulations were made to the first reporting date by six months from the original first reporting dates in July and August 2020 to new first reporting dates in January and February 2021 (see Date the rules come into force).
This means that from January 2021 the reporting obligations apply to a wide variety of arrangements (see Transactions the rules apply to) including those entered into from 25 June 2018.
What this means for solicitors
DAC 6 and the Regulations will require intermediaries involved in designing and promoting certain cross-border arrangements which satisfy hallmarks linked to tax or tax reporting to report those arrangements to HMRC.
This will change how solicitors who advise on cross-border arrangements report and carry out compliance. While the rules were introduced to tackle aggressive tax planning, they apply more broadly. The rules may apply to you even if you do not advise on tax issues.
If you’re responsible for risk and compliance, you may wish to review your firm’s internal processes to ensure that everyone will be compliant with DAC 6 and the Regulations.
The government consulted on a draft of the Regulations over summer 2019.
Our response to that consultation urged the government to take a proportionate approach to transposing the directive into UK law – for example, that the penalty regime should be in keeping with its aim. We gave detailed comments on what the regulations should cover in order to achieve this.
On 13 January 2020, HMRC published a summary of responses to the consultation.
The summary of responses and changes to the Regulations recognise several points we raised in our consultation response, including:
- changes to help safeguard legal professional privilege (LPP)
- amendments to the penalty regime
- a limit on the definition of ‘tax advantage’ only for taxes covered by the Directive
The change to help safeguard LPP in the Regulations was an expanded exception for intermediaries where the relevant information would be subject to LPP.
The government agreed with our and other stakeholders’ view that the rules as originally drafted could make it more difficult to ensure that LPP was not breached.
How the reporting requirements interact with LPP
The interaction between DAC 6 reporting obligations and LPP remains an important issue for members.
We welcome the positive changes that were made to the Regulations in response to the consultation process.
We also welcome the publication of HMRC guidance and HMRC’s continuing willingness to take comments on it.
We expect HMRC to continue to make a small number of updates to its guidance on the rules over the coming weeks.
Despite the postponement of the first reporting dates by six months (see Date the rules come into force), the timescales and the optional nature of the postponement measures could still lead to problems, so law firms should continue their work preparing for DAC 6 compliance.
We recommend that members prepare to comply with the rules by reviewing, monitoring, and recording relevant reportable arrangements under DAC 6 and the Regulations in respect of which the first implementation step has taken place since 25 June 2018.
We’ll continue to engage with members and with HMRC about how the Regulations will work in practice.
July 2020 – The International Tax Enforcement (Disclosable Arrangements) (Coronavirus) (Amendment) Regulations 2020 were made by HM Treasury to legislate for the six-month deferral of reporting deadlines previously communicated in June
July 2020 – HMRC published guidance on the rules
June 2020 – HMRC confirmed that the UK is taking up the optional six-month deferral and that the government will amend the UK Regulations that implement DAC 6 to give effect to this
June 2020 – EU Council announced that it has adopted an amending directive to DAC 6 providing an optional six-month delay to the reporting deadlines due to the disruption caused by the coronavirus (COVID-19) pandemic
January 2020 – HMRC published a summary of responses to its consultation
January 2020 – the International Tax Enforcement (Disclosable Arrangements) Regulations 2020, Statutory Instrument 2020 No. 25 (the Regulations) were made by HM Treasury
October 2019 – we published our response to the consultation
July to October 2019 – government consulted on a draft of the Regulations