DAC 6: Official reporting forms and the forms for communications between private parties have been published
Spain Tax Alert
Following the transposition of Council Directive (EU) 2018/822 of 25 May 2018 (DAC 6) by Law 10/2020, of December 29, 2020, and its implementing regulations adopted in Royal Decree 243/2021, of April 6, 2021, the forms for reports and communications have now been approved.
The April 13, 2012 edition of the Official State Gazette has published:
a) Order HAC/342/2021, of April 12, 2020, approving the mandatory report forms under the legislation that transposed and implemented DAC 6 in Spain (analyzed in detail in our commentary dated April 9, 2021).
b) The Decision of April 8, 2021 of the AEAT (Departamento de Gestión Tributaria), approving the forms for private communications between individuals and entities involved and participants in reportable cross-border tax planning arrangements.
The following forms have been approved:
1. Report forms: Order HAC/342/2021 approves the following report forms, which have to be used by intermediaries or taxpayers to fulfill their reporting obligations:
a) Form 234, which will have to be filed in relation to cross-border arrangements including any of the hallmarks contained in the annex to the directive, with the specific characteristics provided in article 47 of Royal Decree 1065/2007, of July 27, 2007 (as amended by Royal Decree 243/2021).
This form must be filed within 30 calendar days following the date when the reporting obligations arises.
It needs to be highlighted in this regard that, under transitional provision one of that Royal Decree 243/2021, reportable arrangements have to be reported if their first step was implemented between June 25, 2018 and June 30, 2020 (known as the “first transitional period”) or if the reporting obligation arose on or after July 1, 2020 (the “second transitional period”).
Reportable arrangements falling within these transitional periods have to be reported within 30 calendar days following the entry into force of the ministerial order HAC/342/2021. Therefore, the deadline for reporting these arrangements is May 14, 2021.
b) Form 235, which must be filed quarterly (within a month from the end of every calendar quarter) to update the information on marketable cross-border arrangements that do not need to be substantially customized to be implemented, that have been reported previously.
c) Form 236, which must be filed when cross-border arrangements previously reported to the Spanish tax authorities or to another tax authority under the directive are used in Spain.
This form must be filed in the last quarter of the calendar year following the year in which the use in Spain of the corresponding reported cross-border arrangements occurred.
2. Communication forms: The AEAT’s decision of April 8, 2021 has approved the forms for the communications between private parties for cases where intermediaries or taxpayers are not required to file the report forms (where, e.g., the intermediary claims professional privilege or where another intermediary has previously reported the transaction concerned) and that fact must be communicated to other intermediaries or to the taxpayer.
It is nevertheless allowed to make communications with other formats, if they observe the minimum contents of the approved forms.
These communications must be filed within five days as from when the reporting obligation arises or as from the day following the filing of the report by another intermediary or taxpayer.
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