European Union directive | |
Title | Directive on Administrative Co-operation in the field of Taxation |
---|---|
Made under | Articles 113 and 115 TFEU |
Journal reference | OJ L 64, 11.3.2011, p. 1–12 |
History | |
Council Vote | Unanimous |
Date made | 15 February 2011 |
Other legislation | |
Replaces | Directive 77/799/EEC |
Amended by | Council Directives 2014/107, 2015/2376, 2016/881, 2016/2258, 2018/822, 2021/514 and pending amendment by Procedure File 2022/0413 |
The Directive on Administrative Co-operation in the field of taxation (commonly referred to as 'the DAC') is a Directive (European Union) which sets rules for the Automatic Exchange of Information (AEOI) which apply to members of the European Union (EU).
The DAC's primary purpose is to tackle tax evasion and avoidance through the sharing of information on individuals and entities within the EU. [1]
The Directive has been amended 7 times to expand the scope of AEOI within the EU, reflecting both global initiatives in this area undertaken by the OECD as well as the EU's own initiatives. In addition, an amendment to the Regulation on administrative cooperation and combating fraud in the field of value added tax adds an additional AEOI reporting requirement in respect of payments.
Amendment | Amending Directive | Information Reported | OECD equivalent measure | Effective from |
---|---|---|---|---|
DAC | Council Directive 2011/16 |
| - | 2012 |
DAC2 | Council Directive 2014/107 | Financial accounts | Common Reporting Standard | 2014 |
DAC3 | Council Directive 2015/2376 | Tax rulings | BEPS Action 5 | 2012 |
DAC4 | Council Directive 2016/881 | Country-by-country tax reporting for multinationals | BEPS Action 13 | 2016 |
DAC5 | Council Directive 2016/2258 | Beneficial ownership of entities | - | 2017 |
DAC6 | Council Directive 2018/822 | Cross-border arrangements which meet a hallmark of (potential) tax avoidance | BEPS Action 12 | 2018 |
DAC7 | Council Directive 2021/514 | Sellers using digital platforms to:
| Digital Platforms Information Reporting (DPI) | 2023 |
DAC8 | Council Directive 2023/2226 | Transactions involving the buying, selling, exchange or other acquisitions and disposals of cryptocurrency and other digital assets | Crypto-Assets Reporting Framework (CARF) | 2026 |
CESOP | Council Regulation (EU) 2020/283 | Cross-border payment transactions where the payer/sender is in the EU, including bank transfers, direct debits, credit and debit card transactions. | - | 2024 |
The original Directive (Council Directive 2011/16 [2] ) entered into force in 2011 and established a framework for co-operation between Member states of the European Union in direct tax matters. The Directive excludes from its scope value-added tax matters, although a separate regulation (Council Regulation No. 904/2010) establishes similar principles [3]
The first Directive established 2 key principles:
In 2014, the OECD agreed the principles of Automatic Exchange of Information for financial accounts, under the Common Reporting Standard.
In order to implement these rules with the EU, the DAC was amended by Directive 2014/107 [4] to include the exchange of information on financial accounts. This change required banks, asset managers and certain insurance companies in the EU to gather information on the tax residence of customers and to provide reports to their domestic tax authority every year for onward exchange with other EU Member States. [5]
As a result, an EU resident who holds a bank account, investment account or other investment in another EU country will have details of that account reported to their domestic tax authority. A report by the European Parliament on the implementation of DAC2 indicated that more than 8 million accounts held by EU residents in other countries were reported in 2018. [6]
A 2019 report into the effectiveness of the Common Reporting Standard noted that it was "substantially different from any initiative in the field of information exchange launched so far, including its role model FATCA". [7]
In 2015, the Directive was amended to add the exchange of information on tax rulings, [8] which requires tax authorities to exchange information where they grant a tax ruling to a resident of another EU Member State. This gave effect to Action 5 of the OECD's Base erosion and profit shifting initiative (BEPS) which required the same exchange of information between all BEPS adopters.
This amendment is the only rule under the DAC which does not impose any obligations on companies to provide additional information to their tax authority.
In 2016, the Directive was amended [9] to add the exchange of Country-by-Country Reporting by companies operating in the EU. This gave effect to Action 13 of the OECD's BEPS initiative in the EU.
All multinational companies with revenues greater than €750 million are required to submit reports annually to their tax authority, including groups which are parented outside of the EU but operate in the EU.
In 2021, the EU agreed Directive 2021/2101 which requires public country-by-country reporting to be published by the same companies from 2026 and available on the company's website or on a central register. [10] The requirement under DAC4 remains in place, as more information is required under DAC4 than under the public disclosure rules.
The Directive was amended again [11] in 2016 to provide access to beneficial ownership registers which were established under Anti Money Laundering Directives. In particular, Council Directive 2015/849, the EU's 4th Anti-Money Laundering Directive created a requirement for the registration of information on beneficial ownership in a central register.
The Directive was amended [12] in 2018 to include exchange of information on 'cross-border arrangements', which are transactions which meet one or more hallmarks of (potential)Tax avoidance and which involve residents of EU Member States, or otherwise concern member states. [13]
The Directive defines 15 hallmarks of potential tax avoidance [14] which include secrecy requirements, conversion of income to capital, double deductions for expenses, and cross-border movements of assets or business.
Those rules also gave effect to the OECD's Model Mandatory Disclosure Rules for CRS Avoidance Arrangements and Opaque Offshore Structures [15] which require reporting on transactions which seek to avoid reporting under DAC2.
Due to the COVID-19 pandemic, the EU Council subsequently amended the Directive to allow 6-months of additional time for implementation.
In 2020, the Directive was amended [16] to include rules which require digital platforms to report information on sellers who use the platform to:
The rules mirror the OECD's Digital Platforms Information package and implement the rules in the EU.
DAC7 has two notable differences from previous amendments to the Directive:
In 2023, the EU agreed an amendment [18] to the Directive to implement the OECD's Crypto-Assets Reporting Framework for all member states. That adoption was closely tied to the EU's adoption of Markets in Crypto-Assets (MiCA) regulations, with the two regimes intended to work together. [19] These rules require Crypto-Asset Service Providers to report on all transactions which involve the acquisition, disposal or exchange of cryptocurrency and other digital assets. [20]
Like DAC7, the scope of DAC8 is extraterritorial - for example, requiring cryptocurrency exchanges based in the US to report on EU resident customers.
The DAC8 establishes new amendments to the developed set of rules on administrative cooperation in the field of taxation. [21]
The rules are due to go into effect from 1 January 2026.
In addition to the amendments to the DAC, an additional AEOI reporting requirement was added in 2020 in respect of VAT. This was added through amendments to the VAT Directive and the Regulation on administrative cooperation and combating fraud in the field of value added tax as the DAC only applies to direct tax matters.
Those amendments create a reporting obligation known as CESOP, which requires Payment Service Providers in the EU to report on payments made by EU residents.
With the exception of the original DAC and DAC3, all other amendments to the Directive require information to be provided by private companies to their domestic tax authorities, who then exchange information with EU Member States through the Common Communication Network. In the case of DAC2, DAC3, DAC4, DAC7 and DAC8, EU Member States will also exchange the information collected with non-EU countries operating under the rules established by the OECD's Global Forum on Transparency and Exchange of Information for tax purposes. This also applies to a sub-set of information exchanged under DAC6.
As a result of the DAC, a wide range of companies are required to establish procedures to identify EU residents and report information on their activities to their domestic tax authority. These companies are commonly referred to as 'intermediaries' in the text of the DACs.
DAC | In scope intermediaries | Information reported |
---|---|---|
DAC2 | Banks, asset managers, trust companies, wealth managers and other investment vehicles | Balance and income on financial accounts held outside country of residence. |
DAC5 | Trust companies, company secretaries | Beneficial owners of certain vehicles |
DAC6 | Lawyers, accountants, tax advisors and other who provide tax advice as an ancillary service | Information on transactions which meet one of 15 hallmarks of tax avoidance |
DAC7 | Digital platforms who connect buyers and sellers engaged in the sale of goods, rental of accommodation, rental of transport or provision of personal services | Quarterly breakdown of income received from activities, fees paid to the platform and any taxes withheld |
DAC8 | Cryptocurrency exchanges, fintechs, other digital assets protocols other than fully decentralized finance | Full transaction details on the acquisition and disposal of cryptocurrencies and other digital assets, whether for fiat money or other digital assets. |
CESOP | Payment Service Providers under the Payment Services Directive (PSD2) | Full transaction details on cross-border payments at a transaction level, including identifying information for the recipient. |
Individuals resident in the EU are likely to be asked to provide certain information by intermediaries who are within the scope of the DAC. Typically an EU resident opening a bank account, investment account or establishing themselves as a seller on a digital platform should be asked to provide details of their tax residency and their Tax Identification Number. From 2026, this will also apply to EU citizens establishing relationships with cryptocurrency exchanges and other digital assets providers.
Individuals may be asked to provide additional information where they provide more complex information - for example, a tax residency in one country but an address in another country. The precise rules to be followed vary for each of the DACs.
There have been legal challenges raised in relation to the scope of the DAC and the perceived risk to data security. For example, an Italian individual challenged the exchange of information by the UK's tax authority HM Revenue and Customs under the Common Reporting Standard/DAC2. [22] In 2022, the European Court of Justice concluded that the rules under DAC6 which required law firms to report on client activities would breach Legal professional privilege requirements. [23]
A tax treaty, also called double tax agreement (DTA) or double tax avoidance agreement (DTAA), is an agreement between two countries to avoid or mitigate double taxation. Such treaties may cover a range of taxes including income taxes, inheritance taxes, value added taxes, or other taxes. Besides bilateral treaties, multilateral treaties are also in place. For example, European Union (EU) countries are parties to a multilateral agreement with respect to value added taxes under auspices of the EU, while a joint treaty on mutual administrative assistance of the Council of Europe and the Organisation for Economic Co-operation and Development (OECD) is open to all countries. Tax treaties tend to reduce taxes of one treaty country for residents of the other treaty country to reduce double taxation of the same income.
The Undertakings for Collective Investment in Transferable Securities Directive (UCITS) 2009/65/EC is a consolidated EU directive that allows collective investment schemes to operate freely throughout the EU on the basis of a single authorisation from one member state. EU member states are entitled to have additional regulatory requirements for the benefit of investors.
The European Union withholding tax is the common name for a withholding tax which is deducted from interest earned by European Union residents on their investments made in another member state, by the state in which the investment is held. The European Union itself has only limited taxation powers, so the name may be considered a misnomer. The aim of the tax is to ensure that citizens of one member state do not evade taxation by depositing funds outside the jurisdiction of residence and so distort the single market. The tax is withheld at source and passed on to the EU Country of residence. All but three member states disclose the recipient of the interest concerned. Most EU states already apply a withholding tax to savings and investment income earned by their nationals on deposits and investments in their own states. The Directive seeks to bring inter-state income into the same arrangement, under the Single Market policy.
Virtual currency, or virtual money, is a digital currency that is largely unregulated, issued and usually controlled by its developers, and used and accepted electronically among the members of a specific virtual community. In 2014, the European Banking Authority defined virtual currency as "a digital representation of value that is neither issued by a central bank or a public authority, nor necessarily attached to a fiat currency but is accepted by natural or legal persons as a means of payment and can be transferred, stored or traded electronically." A digital currency issued by a central bank is referred to as a central bank digital currency.
Taxation in the British Virgin Islands is relatively simple by comparative standards; photocopies of all of the tax laws of the British Virgin Islands (BVI) would together amount to about 200 pages of paper.
Exchange of Information is an umbrella term which refers to international co-operation in the field of taxation through the exchange of information on taxpayers between tax authorities.
The Revised Payment Services Directive (PSD2, Directive (EU) 2015/2366, which replaced the Payment Services Directive (PSD), Directive 2007/64/EC) is an EU Directive, administered by the European Commission (Directorate General Internal Market) to regulate payment services and payment service providers throughout the European Union (EU) and European Economic Area (EEA). The PSD's purpose was to increase pan-European competition and participation in the payments industry also from non-banks, and to provide for a level playing field by harmonizing consumer protection and the rights and obligations of payment providers and users. The key objectives of the PSD2 directive are creating a more integrated European payments market, making payments more secure and protecting consumers.
The Transparency Directive, Transparency Obligations Directive or Directive 2004/109/EC is an EU Directive issued in 2004, revising an earlier Directive 2001/34/EC. The Transparency Directive was amended in 2013 by the Transparency Directive Amending Directive.
The Global Forum on Transparency and Exchange of Information for Tax Purposes was founded in 2000 and restructured in September 2009. It consists of OECD member countries as well as other jurisdictions that have agreed to implement tax related transparency and information exchange. The forum works under the auspices of the OECD and G20. Its mission is to "implement the international standard through two phases of peer review process". It addresses tax evasion, tax havens, offshore financial centres, tax information exchange agreements, double taxation and money laundering.
The Foreign Account Tax Compliance Act (FATCA) is a 2010 U.S. federal law requiring all non-U.S. foreign financial institutions (FFIs) to search their records for customers with indicia of a connection to the U.S., including indications in records of birth or prior residency in the U.S., or the like, and to report such assets and identities of such persons to the United States Department of the Treasury. FATCA also requires such persons to report their non-U.S. financial assets annually to the Internal Revenue Service (IRS) on form 8938, which is in addition to the older and further redundant requirement to report them annually to the Financial Crimes Enforcement Network (FinCEN) on form 114. Like U.S. income tax law, FATCA applies to U.S. residents and also to U.S. citizens and green card holders residing in other countries.
The Common Reporting Standard (CRS) is an information standard for the Automatic Exchange Of Information (AEOI) regarding financial accounts on a global level, between tax authorities, which the Organisation for Economic Co-operation and Development (OECD) developed in 2014.
Base erosion and profit shifting (BEPS) refers to corporate tax planning strategies used by multinationals to "shift" profits from higher-tax jurisdictions to lower-tax jurisdictions or no-tax locations where there is little or no economic activity, thus "eroding" the "tax-base" of the higher-tax jurisdictions using deductible payments such as interest or royalties. For the government, the tax base is a company's income or profit. Tax is levied as a percentage on this income/profit. When that income / profit is transferred to a tax haven, the tax base is eroded and the company does not pay taxes to the country that is generating the income. As a result, tax revenues are reduced and the country is disadvantaged. The Organisation for Economic Co-operation and Development (OECD) define BEPS strategies as "exploiting gaps and mismatches in tax rules". While some of the tactics are illegal, the majority are not. Because businesses that operate across borders can utilize BEPS to obtain a competitive edge over domestic businesses, it affects the righteousness and integrity of tax systems. Furthermore, it lessens deliberate compliance, when taxpayers notice multinationals legally avoiding corporate income taxes. Because developing nations rely more heavily on corporate income tax, they are disproportionately affected by BEPS.
Paul Johannes George (Paul) Tang is a Dutch economist and politician on behalf of the Dutch Labour Party.
European company law is the part of European Union law which concerns the formation, operation and insolvency of companies in the European Union. The EU creates minimum standards for companies throughout the EU, and has its own corporate forms. All member states continue to operate separate companies acts, which are amended from time to time to comply with EU Directives and Regulations. There is, however, also the option of businesses to incorporate as a Societas Europaea (SE), which allows a company to operate across all member states.
International tax planning also known as international tax structures or expanded worldwide planning (EWP), is an element of international taxation created to implement directives from several tax authorities following the 2008 worldwide recession.
The general notion of cryptocurrencies in Europe denotes the processes of legislative regulation, distribution, circulation, and storage of cryptocurrencies in Europe. In April 2023, the EU Parliament passed the Markets in Crypto Act (MiCA) unified legal framework for crypto-assets within the European Union.
Country-by-Country Reporting is an international initiative pioneered by the OECD. It establishes a reporting standard for multinational enterprises (MNEs) with total consolidated group revenues > EUR 750 million containing key tax-related information including financial information and information on employees and non-cash tangible assets. Under the OECD rules, the information is to be exchanged between the tax authorities of the exchanging countries. However, the EU adopted legislation to make Country-by-Country reports publicly available after 2024.
The Crypto-Asset Reporting Framework is a global initiative led by the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes which is intended to promoted the automatic exchange of information between countries to tackle emerging tax evasion risks related to cryptocurrency and digital assets.
The Central Electronic System of Payments (CESOP) regime is an automatic exchange of information regime being introduced in the European Union from 1 January 2024. The rules were introduced by Council Directive 2020/284, amending the EU's Value-added tax Directive.