Personal scope of application As per 26 June 2022

Are there any deviations from the Directive in defining the intermediary?

2021/06/17

In principle, the Swedish definition is very close to the Directive.However, the right for any person to provide evidence that such a person did not know and could not reasonably be expected to know that that person was involved in a reportable cross-border arrangement, is not included in the Swedish law. The reason for this is that free shifting of evidence applies in Sweden, which means that the parties to a trial may invoke all evidence they can obtain and that the value of such evidence is examined freely by the court. Since there is no limit in Sweden on what may be relied upon as evidence, there is no reason to regulate this specifically.Further, the concept of "Intermediary" is not adapted to the Swedish language in terms of which category of persons the provision is intended to meet. Instead, Sweden proposes to use the term "Adviser". There is no intention to make any difference in substance between the wording of DAC 6 and the proposed definition of advisers.

How is an intermediary defined? Is there a differentiation between a corporate entity and an individual person?

2021/06/17

The term “person” follows the definition in the DAC (see Article 3 paragraph 11). This refers not only to natural and legal persons but also to an association of persons recognized as having the capacity to perform legal acts but lacking the status of a legal person. Any other legal arrangement of whatever nature and form, regardless of whether it has legal personality, owning or managing assets, which, including income derived therefrom, are also covered by the term “person”.Even if it is the individual tax advisor or a group of tax advisors, the employee should have no personal obligation to file information on tax arrangements for which he or she has provided within the framework of his or her employment. The obligation lies with the tax advisory firm. This interpretation is consistent with the interpretation of DAC 6 made by the Member States and the Commission at its meeting on September 24, 2018 (see Summary Record – prepared by the Commission Services, Working Party IV – Direct Taxation).

Can a corporate tax department (or its members) within a MNE or within a group of entities qualify as an intermediary?

2021/06/17

See answer 2. above. However, a company who designs and set up an arrangement to be performed by another company within the same group may qualify as an intermediary.

How are the actions of designing, marketing, organizing, making available for implementation or managing the implementation of a tax arrangement defined?

2021/06/17

Designing - For a person to be considered to have designed an arrangement, it is not necessary that he has designed all parts of the arrangement. It may be enough that the person in question has designed certain parts, if these parts are crucial for the purpose of the event to be achieved.Marketing - Marketing an arrangement means, among other things, promoting an arrangement aimed at increasing the demand for the arrangement (cf. the definition of marketing in the OECD Model Mandatory Disclosure Rules for CRS Avoidance Arrangements and Opaque Offshore Structures, paragraph 46).Organizing - Organizing an event for it to be implemented is something that, in time, should be done before an arrangement is actually implemented.Making available for implementation - In order for an arrangement to be considered to be available for implementation, it should be requiredthere, basically, is a ready solution, but that all the details about the arrangement do not need to be clear. There should be a decision basis. If a person develops and presents three different options for a potential client and all of these are ready to use, all three events must, thus, be reported.

Have the legal preconditions regarding the territorial nexus for an intermediary been implemented in accordance with the Directive?

2021/06/17

Yes. However, in deviation from the Directive, only persons fulfilling the nexus to Sweden can be intermediary obliged to report in Sweden.

Are there any other conditions apart from those of the Directive, such as the territorial nexus of a tax arrangement to a certain Member State, which trigger a reporting obligation of an intermediary (e.g. including intermediaries from outside the EU)?

2021/06/17

There are no other conditions apart from those of the Directive.

In which cases is the relevant taxpayer obliged to report? Are there deviations from the Directive?

2021/06/17

The user is obliged to report in two cases:(1) If no intermediary exists.(2) If all intermediaries are prevented from providing full details of the tax arrangement because they are subject to a legal professional privilege of confidentiality.The first subparagraph applies only if the user is fulfilling the nexus to Sweden and the nexus is not stronger to any other Member State.

Are there any other persons beside intermediaries or relevant taxpayers obliged to report?

2021/06/17

There are no other persons beside intermediaries and users obliged to report.

Are there any deviations from the Directive in defining the relevant taxpayer?

Mechanism to avoid multiple reporting

Which measures have been taken to avoid multiple reporting obligations referring to an intermediary obliged to report in several countries? Are there deviations from the Directive?

2021/06/17

If an intermediary has as an equally strong connection to any other Member State as to Sweden, information on the reportable cross-border arrangement need not be provided to the Swedish Tax Agency if the corresponding information has already been provided to the competent authority of the other Member State. The strength of the connection is determined in the order resulting from 7§.Where the intermediary is liable to file information on reportable cross-border arrangements with the competent authorities of more than one Member State, such information shall be filed only in the Member State that features first in the list below:1. The Member State where the intermediary is resident for tax purposes;2. The Member State where the intermediary has a permanent establishment through which the services with respect to the arrangement are provided;3. The Member State which the intermediary is incorporated in or governed by the laws of;4. The Member State where the intermediary is registered with a professional association related to legal, taxation, or consultancy services.

Which measures have been taken to avoid multiple reporting obligations referring to more than one intermediary obliged to report? Are there deviations from the Directive?

2021/06/17

The intermediary shall be exempt from filing the information if another intermediary has already left:1. Prescribed information to the Swedish Tax Agency, or2. Corresponding information to a competent authority of another Member State.

Which measures have been taken to avoid multiple reporting obligations referring to a relevant taxpayer obliged to report several countries? Are there deviations from the Directive?

2021/06/17

The Swedish measures are in line with the Directive.The relevant taxpayer shall be exempt from filing the information if it has proof, in accordance with national law, that the same information has been filed in another Member State.The user shall file information on the reportable cross-border arrangement in Sweden, only if the user's connection to another Member State is not stronger than the connection to Sweden. The strength of the connection is determined by the Member State that features first in the list below:1. the Member State where the relevant taxpayer is resident for tax purposes;2. the Member State where the relevant taxpayer has a permanent establishment benefiting from the arrangement;3. the Member State where the relevant taxpayer receives income or generates profits;4. the Member State where the relevant taxpayer carries on an activity.

Which measures have been taken to avoid multiple reporting obligations referring to more than one relevant taxpayer obliged to report? Are there deviations from the Directive?

2021/06/17

The Swedish measures are in line with the Directive.If there are several users who are required to provide information, a user shall be exempt from filing the information to the extent that it has proof, in accordance with national law, that the same information has already been filed by another user that features first in the list below:1. the relevant taxpayer that agreed on the reportable cross-border arrangement with the intermediary;2. the relevant taxpayer that manages the implementation of the arrangement.

How does the National Tax Authority expect the conditions for exemption from filing a report to be met?

2021/06/17

Material scope of application

Are national tax arrangements subject to reporting under the Directive?

2021/06/17

National tax arrangements are not subject to report.

Which taxes are affected? Are there deviations from the Directive?

2021/06/17

All taxes subject to the Law on European Administrative Cooperation are affected. That is, all types of taxes levied on the territories in which the Treaty on European Union and the Treaty on the Functioning of the European Union apply under Article 52 of the Treaty on European Union. The law does not apply to excise duties covered by other Union legislation on administrative cooperation between Member States, nor to VAT. Nor does it apply to mandatory social security contributions or customs duties.

Does the hallmark catalogue deviate from the Directive? If yes, to what extent?

2021/06/17

The hallmark catalogue does, in principle, not deviate from the Directive in terms of content. However, the catalogue is structured in a different way.

Which hallmarks are linked with the main benefit test?

2021/06/17

The same hallmarks from the Directive are linked with the main benefit test. Those are hallmarks referring to:1. Confidentiality clause;2. Performance-related remuneration;3. Standardized Arrangement;4. Artificial acquisition of a loss-making company;5. Conversion of income;6. Circular transactions;7. Cross-border payments are not taxed or taxed preferentially at the level of the recipient.

How is the main benefit test defined?

2021/06/17

The main benefit test is fulfilled, if the main benefit or one of the main benefits that a person may reasonably expect to derive from an arrangement is obtaining a tax advantage.

How is a tax advantage defined?

2021/06/17

The preparatory work for the Reformed Tax Avoidance Act (prop. 1996/97:170 p. 45) states, inter alia, that what is meant by tax benefit is simply the avoidance of the additional tax that would have been imposed if the tax avoidance procedure had not been achieved. In the present case, such a general declaration cannot be given because the tax benefit is to be largely governed by the characteristics to which the main benefit test is to be applied to.

Are there any deviations from the Directive in defining a cross-border arrangement?

Is there a white list defining arrangements explicitly excluded from a reporting obligation? If yes, please provide details.

Are there any deviations from the Directive in defining associated enterprises?

Reporting process

When is a cross border arrangement made available for implementation (e.g. handover of contract documents)?

2021/06/17

In order for an arrangement to be considered to be available for implementation, it should be requiredthere, basically, is a ready solution, but that all the details about the arrangement does not need to be clear. There should be a decision basis. If a person develops and presents three different options for a potential client and all of these are ready to use, all three events must, thus, be reported.

When is a cross-border arrangement ready for implementation?

2021/06/17

No concrete legal guidance.

When has the first step in the implementation of a cross-border arrangement been made?

2021/06/17

No concrete legal guidance.

Which information should be included in the report? Are there deviations from the Directive?

2021/06/17

The Swedish provision is esentially in line with the Directive, however, not as detailed. The report should include:1. The necessary identification information, including the residence for tax purposes, for:a) the intermediary;b) the user;c) associated persons if these are of importance for the reportable cross-border arrangement.2. Which national provision(s) that makes the arrangement cross-border arrangement obligatory for reporting;3. A summary of the content of the reportable cross-border arrangement, including a reference to the name by which it is commonly known if any, and description in abstract terms of the relevant business activities or arrangements;4. The date on which the first step in implementing the reportable cross-border arrangement has been made or will be made;5. Details of the national provisions that form the basis of the reportable cross-border arrangement;6. The value of the reportable cross-border arrangement;7. The identification of the Member State of the relevant taxpayer(s) and any other Member States which are likely to be concerned by the reportable cross-border arrangement;8. The identification of any other person in a Member State likely to be affected by the reportable cross-border arrangement, indicating to which Member States such person is linked.The information must also be provided on the reference number if one has been assigned to the reportable arrangement by the Swedish Tax Agency or another Member State's competent authority

What does the reporting process look like? Are there deviations from the Directive?

2021/06/17

No direct deviation from the Directive. The information shall be provided on a fixed form to facilitate exchange between Member States.

Is the entire report to be provided by the intermediary/relevant taxpayer? Who must provide the report?

2021/06/17

In principle, the intermediary as well as the relevant taxpayer can be obliged to provide the entire report. In deviation from the Directive, the reporting process is subdivided into two stages, in case that the intermediary is subject to a legal professional privilege or in case no intermediary exists.

What are the respective deadlines for the intermediary and the relevant taxpayer to file the report? Are there deviations from the Directive in terms of filing the information within 30 days?

2021/06/17

The deadlines are in line with the Directive; 30 days for both the intermediary and the relevant taxpayer.At the end of each calendar quarter, an intermediary must provide a summary of certain information that has been added since the last information was submitted. This only applies to an arrangement that does not need to be substantially adapted to be implemented by a new user.

Which numbers are assigned by local tax authorities to the cross-border arrangements?

2021/06/17

The Swedish tax authority assigns to each report of a cross-border tax arrangement a reference number. The registration number will be exchanged with tax authorities of other Member States and therefore can be used in other Member States as proof that the report has been filed in Sweden.

What is the reporting deadline for arrangements the first step of which was implemented between 25 June 2018 and 30 June 2020?

When is the reporting deadline for arrangements for which the event triggering the reporting obligation lies between 1 July 2020 and 31 December 2020?

When is the reporting deadline for arrangements for which the event triggering the reporting obligation lies after 1 January 2021?

Penalties

In which cases are penalties imposed?

2021/06/17

Sanctions are imposed if the person who is to sumit information about an arrangement has not provided the prescribed information on time.

What are the penalties?

2021/06/17

Failure to comply with the obligation to provide information can be sanctioned with a fine of up to 315,000 SEK for every reportable cross-border arrangement and every report, depending on how long the failure to provide information lasts and turnover if the failure occurred in a business activity.

Is a distinction made between penalties imposed on intermediaries/relevant taxpayers/other persons obliged to report?

2021/06/17

Yes, users are sanctioned with lower fines than intermediaries.

What are the penalties in case of redundant reports? A redundant report is a report, which was filed, although there is no obligation to file one.

2021/06/17

There are no sanctions for redundant reports.

Do the penalties differ with regard to incomplete, incorrect, missing or late reports? Are there any gradations?

2021/06/17

Other than the abovementioned, the law does not specify any gradations for different breaches of the reporting obligation, see questions 32-33.

Are arrangements the first step of which was implemented between 25 June 2018 and 30 June 2020 treated differently in the means of penalties?

Other aspects

Do already other reporting regimes on cross-border arrangements exist?

Are there any other special deviations from the Directive? 

What is the name of the national Tax Authority responsible for DAC6?

Do any other obligations apart from reporting a reportable cross-border arrangement exist under the national DAC6 legislation? (i.e. indication of the arrangement in the tax return)

Professional privilege/secrecy

Who is primarily obliged to report? Is there a primary reporting obligation of the intermediary or the relevant taxpayer? Is there legal privilege and in how far has it been considered for allocating the reporting obligation?

2021/06/17

The primary reporting obligation lies within the intermediary. However, the reporting obligation shall pass to the user (relevant taxpayer) in two cases:1. If no intermediary exists.2. If all intermediaries are prevented from providing full details of the tax arrangement because they are subject to a legal professional privilege of confidentiality.

Does the reporting obligation breach a legal professional privilege under national law?

2021/06/17

The reporting obligation could be in breach with the legal professional privilege for laywers in Sweden. An intermediary must submit information only insofar as he is not prevented from submitting the information due to the confidentiality obligation. The obligation to file information on a reportable cross-border arrangement where the reporting obligation would breach the professional privilege would pass on to the relevant taxpayer.

Does the national law make reference to professional privilege or professional secrecy?

What is the difference, as per the national law, between professional privilege and professional secrecy?

To which categories of intermediaries does the professional privilege or professional secrecy apply?

In the context of the reporting obligation, under which conditions are the intermediaries entitled/obliged to make use of professional privilege or professional secrecy?

In cases in which professional privilege or secrecy applies, please describe the procedure for notification.

Does the national law provide specific conditions to waive professional privilege or professional secrecy?

Per Katz
Tax lawyer/Manager