Personal scope of application As per 02 December 2022

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

2021/07/28

The Austrian definition is very close to the Directive.

2021/07/28

The definition is very close to the Directive.

2021/07/27

The Austrian definition is very close to the Directive.

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

2021/06/17

In principle, natural as well as legal persons can qualify as an intermediary. The term "intermediary" is not restricted to certain professional groups. However, persons who provide tax or legal services, management consulting or asset management services (for example tax consultants, auditors, accountants, lawyers, notaries, financial advisors or banks) are primarily addressed. Neither employed advisors nor self-employed consultants, who act in the name and on behalf of a company, are deemed to act as intermediaries themselves. In these cases the employer respectively the principal is the intermediary with respect to a tax arrangement.

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

2021/06/17

Yes, if the tax department is established as separate legal entity within the MNE or a group and this company is resident in Austria for tax purposes.

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 - this action includes in particular the creation, the development or shaping of a certain reportable cross-border arrangement.Marketing - a reportable cross-border arrangement is marketed by those, who place it on the market, i.e. make it available on the market for the first time or advertise it, for example.Organizing - the organization of a reportable cross-border arrangement focuses in particular on administrative aspects in which the intermediary is, for example, a general contractor.Making available for implementation - this includes any paid and free delivery for distribution or use. This can affect both cases in which the reportable cross-border arrangement is made available to one or more relevant taxpayers, as well as cases in which the reportable cross-border arrangement is not yet offered to any relevant taxpayer.Managing the implementation - this includes in particular processes in which the reportable cross-border arrangement has already been acquired by one or more concrete relevant taxpayer/s and means the support of this or this relevant taxpayer/s with regard to the reportable cross-border arrangement. Management can involve one or more steps.

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

2021/06/17

Deviating from the Directive, a person who is a tax resident only in another EU-member state than Austria cannot qualify as an intermediary in Austria.Accordingly, a person who is a tax resident in Austria can qualify as an intermediary. Besides, a person who is a tax resident in a third-country can qualify as an intermediary in Austria if at least one of the following additional conditions is met:(a) has a permanent establishment in Austria through which the services with respect to the arrangement are provided;(b) is subject to the relevant professional or trade regulations;(c) is registered with a professional association for legal, tax or advisory services.

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 relevant taxpayer is obliged to report in these cases:1. If there is neither an intermediary, who has a territorial nexus to Austria nor an intermediary of another EU-member state;2. If the intermediary is subject to legal professional privilege and the relevant taxpayer has not released the intermediary from his confidentiality obligation and the intermediary has informed the taxpayer about the intermediary's exemption from the reporting obligation and about all relevant reportable facts.

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

2021/06/17

No other persons besides intermediaries and relevant taxpayers are 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

The intermediary shall be exempt from filing the information if he can prove, that he has already filed the report in another EU-member state. In Austria, this proof can be adduced by transmitting the reference number issued by the Member State, in which the reportable cross-border arrangement has been reported before, to the Austrian tax authorities.

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 he can prove, that all information known to him, in his possession or under his control have already been reported by another intermediary involved in the reportable cross-border arrangement. In Austria, this proof can be adduced by transmitting the reference number issued to the intermediary, who has filed the report before, to the Austrian tax authorities.

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 report if he can prove, that all information according to sec. 16 and 17 EU-MPfG known to him, in his possession or under his control has already been reported in another EU-member state. In Austria, this proof can be adduced by transmitting the reference number issued by the Member State, in which the reportable cross-border arrangement has been reported before, to the Austrian tax authorities.

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 be exempt from filing the information if he can prove, that all information according to sec. 16 and 17 EU-MPfG known to him, in his possession or under his control has already been reported by another relevant taxpayer involved in the reportable cross-border arrangement. In Austria, this proof can be adduced by transmitting the reference number issued to the relevant taxpayer who has filed the report before, to the Austrian tax authorities.

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

2021/06/17

See the information from the measures taken to avoid multiple reporting obligations.

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

Except for the following taxes, all Austrian taxes are affected:- value-added tax and customs duties,- excise duties covered by another EU legislation on administrative cooperation between member states,- compulsory social security contributions,- fees or stamp duties, such as for certificates and other documents issued by public authorities,- payments on the basis of a contractual obligation, such as consideration for public utilities.

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

2021/06/17

There are some slight deviations with respect to certain hallmarks, but, in principle, the catalog does not deviate from the Directive. However, the catalog is structured in a different way. First, the hallmarks, which directly trigger the reporting obligation, are listed ("absolutely reportable arrangements" - sec. 5 EU-RA) and then the hallmarks in connection with the main benefit test are listed ("conditionally reportable arrangements" - sec. 6 EU-RA).

Which hallmarks are linked with the main benefit test?

2021/06/17

There are no deviations from the Directive.

How is the main benefit test defined?

2021/06/17

The main benefit test is satisfied if it can be established that the main benefit or one of the main benefits which, having regard to all relevant facts and circumstances, a person may reasonably expect to derive from an arrangement is obtaining a tax advantage.

How is a tax advantage defined?

2021/06/17

There is a tax advantage insofar as a reportable cross-border arrangement- prevents the creation of a tax claim or a tax claim is wholly or partially postponed to another tax period,- reduces the tax base or the tax claim in whole or in part or- leads to full or partial reimbursement or refund of a tax.in Austria or in another member state or in a third country.A tax advantage already exists if it only arises in one affected member state or a third country and therefore only one legal system is affected.

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.

2021/06/17

No, there is no white list, but in the Ministry of Finance's information, some hints were mentioned relating to arrangements that do not meet one or the other criterion of certain hallmarks.

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

2021/06/17

There are no deviations from the Directive.

Reporting process

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

2021/06/17

There is no specific guidance.

When is a cross-border arrangement ready for implementation?

2021/06/17

There is no specific guidance.

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

2021/06/17

There is no specific guidance.

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

2021/06/17

There are no deviations from the Directive.

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

2021/06/17

In general, the intermediary has to file the report (see the section on personal scope of application). After filing the report, the intermediary receives a reference number by the tax authority (Austrian Ministry of Finance) which must be forwarded to the relevant taxpayer/s and to other intermediaries mentioned in the report.The report respective the proof of an already filed report has to be filed electronically via the e-government platform FinanzOnline if there is no (rare) exemption from the use of FinanzOnline.Access to FinanzOnline is only possible if applied for by a person having an Austrian TIN. Intermediaries with the right to represent clients before the tax authorities (mainly: tax advisors, lawyers) may file reports on behalf of their clients if duly authorized by them.

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

2021/06/17

Yes. In principle, the intermediary has to provide the entire report. For exceptions please see the section on personal scope of application.

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 has to file the information within 30 days, beginning on the day after the reportable cross-border arrangement is made available for implemention or is ready for implementation or when the first step in its implementation has been made, whichever occurs first. Auxiliary intermediaries are required to file information within 30 days beginning on the day after they provided - directly or by means of other persons - aid, assistance or advice.The relevant taxpayer/s has/have to file the information within 30 days, beginning on the day after the reportable cross-border arrangement was made available for implementation or the taxpayer/s was/were ready for implementation or when the first step in its implementation was made, or they were informed by the intermediary according to sec. 11 EU-RA, whichever occurs first.As the technical interface was provided by the Ministry of Finance in October 2020, reports due until 31 October 2020 were expected to be filed until 31 October 2020.

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

2021/06/17

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

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

2021/06/17

For reportable cross-border tax arrangements with a first implementation step after 25 June 2018 and before 01 July 2020, the deadline for filing the report for the intermediary as well as for the relevant taxpayer/s was 31 October 2020. Austria did not exercise the option to postpone reporting deadlines provided for in the Directive.

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 in cases, if:- the report was not filed;- the report was filed incompletely;- the report was not filed on time;- the report contains incorrect information or- an intermediary, who is exempt from the reporting obligation (sec. 11 EU-MPfG), does or not completely inform all other intermediaries involved or all relevant taxpayers.The sanctions also apply to periodic reports which need to be filed on a quarterly basis providing an update on marketable arrangements.

What are the penalties?

2021/06/17

Failure to comply with the reporting and/or information requirements will be sanctioned with a fine of- up to EUR 50,000 in case of intent and- up to EUR 25,000 in case of gross negligence.An exculpatory self-disclosure is not possible.

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

2021/06/17

No distinction is made between intermediaries and relevant taxpayers.

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 is no specific regulation. Generally, there could be administrative charges for deliberately triggering unnecessary activities of tax authorities up to EUR 700.

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

2021/06/17

The penalties do not differ.

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

2021/06/17

No.

Other aspects

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

2021/06/17

No other disclosure regimes exist.

Are there any other special deviations from the Directive? 

2021/06/17

There are no other deviations from the Directive than those mentioned above.

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

2021/06/17

Bundesminister für Finanzen (Minister of Finance).

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)

2021/06/17

Do any other obligations apart from reporting a reportable cross-border arrangement to exist under the national DAC6 legislation? (i.e. an 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

In general, the intermediary has to file the report (see section on personal scope of application). If a legal professional secrecy obligation is not waived, the reporting obligation may pass to another intermediary or a relevant taxpayer under certain conditions.

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

2021/06/17

Without a waiver: Yes.

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

2021/06/17

Professional secrecy.

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

2021/06/17

N/A.

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

2021/06/17

Mainly to tax advisors, auditors and lawyers.

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

2021/06/17

Any existing legal professional secrecy must be applied unless it is waived.

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

2021/06/17

If an intermediary is not released from his confidentiality obligation by the relevant taxpayer/s, he is obliged to inform another involved intermediary (= deviation from the Directive which says "all other intermediaries") as well as the relevant taxpayer/s about his exemption from the reporting obligation and according to sec. 16 and 17 EU-RA provide all information regarding the reportable cross-border arrangement known to him, in his possession or under his control, to the relevant taxpayer/s.

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

Florian Würth
Head of Tax