Personal scope of application As per 02 December 2022

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

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

2021/06/17

The definition of the "intermediary" is exactly the same as in the Directive.

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

2021/06/17

No. But if e.g. within a group, the mother company designs a reportable arrangement which is used by other companies of the group, the mother company can be considered 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

No specific regulation.

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

2021/06/17

Yes - The same text as the Directive.

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

Yes - The same text as the Directive.

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

2021/06/17

The relevant taxpayer shall report if :- an intermediary is involved but is not subject to a reporting obligation;- no intermediary has been involved in the arrangement;- the intermediary who shall report is subject to legal privilege in France.

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

2021/06/17

No.

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

No deviation from the Directive - the same measures as those provided by the Directive

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

An intermediary shall be exempt from filing the information only to the extent that there is a justification that the same information has already been filed by another intermediary in France or in 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 relevant taxpayer shall be exempt from filing the information if it has justified, in accordance with national law, that the same information has been filed in another Member State.The following rule defines in which country the report has to be filed primarily:Where the relevant taxpayer has an obligation to file information on the reportable cross-border arrangement with the competent authorities of more than one Member State, such information shall be filed only with the competent authorities of 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, although the relevant taxpayer is not resident for tax purposes and has no permanent establishment in any Member State;4. The Member State where the relevant taxpayer carries on an activity, although the relevant taxpayer is not resident for tax purposes and has no permanent establishment in any Member State.

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 relevant taxpayer shall benefit from a reporting exemption in an MS 1 if it justifies, in accordance with national law, that the same information has been filed in another MS 2.

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

2021/06/17

TBD.

Material scope of application

Are national tax arrangements subject to reporting under the Directive?

2021/06/17

No.

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

2021/06/17

All taxes except VAT, custom duties, excise duties, and compulsory social contributions.

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

2021/06/17

No.

Which hallmarks are linked with the main benefit test?

2021/06/17

Generic hallmarks under category A and specific hallmarks under category B and under points (b)(i), (c), and (d) of paragraph 1 of category C may only be taken into account where they fulfill the “main benefit test”.

How is the main benefit test defined?

2021/06/17

The main benefit or one of the main benefits that a person may reasonably expect to derive from an arrangement, having regard to all the relevant facts and circumstances, is the obtention of a tax benefit.Furthermore, the Treasury is considering to leverage on the Abuse of Law concept; this concept is provided by the tax procedure code, notably the Article L. 64 which allows any document which hides the true meaning of a contract or an agreement which disguises the implementation of income to be set aside, in case the taxpayer is looking essentially for tax relief by doing so.

How is a tax advantage defined?

2021/06/17

A tax advantage is deemed to exist when the arrangement allows, in particular, a tax refund, a tax reduction, a reduction in tax debt, tax deferral, or no taxation.The existence of a tax advantage is not limited to French territory. It is sufficient that the tax advantage is obtained in one of the Member States concerned by the scheme.

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

No further definition as those provided by the Directive in this respect.

When is a cross-border arrangement ready for implementation?

2021/06/17

No further definition as those provided by the Directive in this respect.

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

2021/06/17

No further definition as those provided by the Directive in this respect.

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

2021/06/17

No deviation from the Directive.The declaration should contain :1. The identification of the intermediaries and taxpayers concerned;2. Detailed information on the markers listed in article 1649 AH of the CGI according towhich transboundary arrangements are subject to the declaration;3. A summary of the contents of the arrangement to be declared;4. The date on which the first stage of the implementation of the arrangement;5. Detailed information on the national provisions on which thearrangement is subject to the declaration;6. The value of the arrangement declared;7. The identification of the Member State of the taxpayer(s) concerned as well as of anyother Member States likely to be affected by the arrangements.

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

2021/06/17

Online declaration; probably under the form of a .xlm file.

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

2021/06/17

By the intermediary/or if applicable by the relevant taxpayer.

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 intermediary/taxpayer shall file the declaration provided for in Article 1649 AD of the tax code within thirty days from the earlier of the following dates :1. The day after the day of availability for implementation of the arrangement to be declared;2. The day following the day on which the reportable arrangement is ready for implementation;3. The day on which the first stage of the implementation of the arrangement to be declared is completed.

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

2021/06/17

The FTA will provide each arrangement with a number called "Référence Dispositif".

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

In the case of a missing declaration or notification.

What are the penalties?

2021/06/17

A fine that cannot exceed EUR 10,000The amount of the fine may not exceed EUR 5,000 for the first offense in the current calendar year and in the previous three years.The amount of the fine applied to the same intermediary or taxpayer concerned may not exceed EUR 100,000 per calendar year.

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

2021/06/17

No fine is applicable to the yearly reporting obligation lying on the taxpayer.

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

No specific regulation .

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

2021/06/17

No specific regulation.

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?

2021/06/17

No.

Are there any other special deviations from the Directive? 

2021/06/17

No.

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.The taxpayer shall declare in the above-mentioned cases (question 7)The intermediary subject to legal privilege shall only declare with the consent of the taxpayer.In the absence of such consent, the intermediary shall notify any other intermediary of its reporting obligation.In the absence of any other intermediary without legal privilege, the notification shall be sent to the taxpayer along with the information necessary to comply with his reporting obligation.

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

2021/06/17

The intermediary subject to legal privilege shall only declare with the consent of the 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?

Barbora De Villepin
Senior Manager – International Quality Control