Personal scope of application As per 02 December 2022

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

2021/06/17

There are no deviations from the Directive.

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

2021/06/17

Natural persons and legal persons can qualify as an intermediary where the latter:1. is a resident for tax purposes of the Republic of Bulgaria, or2. has a permanent establishment or a fixed establishment in the Republic of Bulgaria, through which the scheme-related services are provided, or3. is incorporated in or governed by the laws of, the Republic of Bulgaria, or4. is registered with a professional association related to legal, taxation, or consultancy services in the Republic of Bulgaria.

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

2021/06/17

Natural persons and legal persons can qualify as an intermediary where the latter:1. is a resident for tax purposes of the Republic of Bulgaria, or2. has a permanent establishment or a fixed establishment in the Republic of Bulgaria, through which the scheme-related services are provided, or3. is incorporated in or governed by the laws of, the Republic of Bulgaria, or4. is registered with a professional association related to legal, taxation, or consultancy services in the Republic of Bulgaria.

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

2021/06/17

"Making available" includes all the activities by which the public can gain access to the proposed arrangement and individually choose it for its implementation."Implementation" includes coordination activities.

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

2021/06/17

There are no deviations from 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

There are no deviations from the Directive.

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

2021/06/17

Information on a cross-border tax scheme shall be provided by a taxable person in one of the following cases:1. when there is no intermediary on the scheme, including when the scheme is designed by an employee of the taxable person;2. when the intermediary on the scheme is exempt from the obligation for the provision of information of which the taxable person has been informed;3. when the intermediary on the scheme:a) is not a resident for tax purposes of a Member State;b) has not a permanent establishment or a fixed establishment in a Member State through which the scheme-related services are provided;c) is not incorporated in, or governed by the laws of, another Member State;d) is not registered with a professional association related to legal, taxation, or consultancy services in another Member State.

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

2021/06/17

There are no other persons besides intermediaries (promoters and advisors) 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

There are no deviations from the Directive. Where the intermediary has the obligation to report information on one and the same tax scheme in two or more Member States, the information shall be provided only to the competent authority of one Member State, which shall be set in the following sequence:1. the Member State in which the intermediary is a resident for tax purposes;2. the Member State in which the intermediary has a permanent establishment or a fixed establishment, through which the scheme-related services are provided;3. the Member State in which the intermediary is incorporated or whose law governs it;4. the Member State in which the intermediary is registered as a member of a professional association related to legal, taxation or consultancy services.The intermediary shall provide information to the Executive Director of the National Revenue Agency where the Republic of Bulgaria holds the first place in the sequence of Member States.

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

There are no deviations from the DirectiveWhere in respect of a cross-border tax scheme there is more than one intermediary, the obligation for the provision of information shall cover all intermediaries, notwithstanding the fact that the obligation may arise in the different Member States. An intermediary is exempt from the obligation to provide information on a cross-border tax scheme if:1. it has proof that the same information on the cross-border tax scheme has been filed by another intermediary;2. it has proof that the same information has been filed in another Member State;3. it is required by law to keep such information as a professional secret unless the taxable person has stated consent to provide it.

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

There are no deviations from the DirectiveWhere an obligation arises for a taxable person to file information on a cross-border tax scheme to the competent authorities of more than one Member State, such information shall be filed only to the competent authority of the Member State as determined in the following sequence:1. the Member State in which the taxable person is a resident for tax purposes;2. the Member State in which the taxable person has a permanent establishment or a fixed establishment, which are used by the tax scheme;3. the Member State in which the taxable person receives revenues or generates earnings even though he is not a resident for tax purposes and has no permanent establishment or fixed establishment in any Member State;4. the Member State in which the taxable person conducts business even though he is not a resident for tax purposes and has no permanent establishment or fixed 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

Where the obligation for provision of information arises in respect of more than one taxable person, including when the obligation arises in different Member States, information on the cross-border tax scheme shall be provided to the competent authority by the person who is first:1. the taxable person who has agreed with the intermediary on the relevant scheme;2. the taxable person who manages the implementation of the scheme.The taxable person shall not provide information on a cross-border tax scheme if it has proof that:1. he has provided the information in another Member State, or2. another taxable person has provided the same information on the tax scheme.

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

2021/06/17

The taxable person shall not provide information on a cross-border tax scheme if it has proof that:1. he has provided the information in another Member State;2. another taxable person has provided the same information on the tax scheme.

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

There are no deviations from the Directive.DAC does not apply to VAT, custom and excise duties, or compulsory social security contributions.

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

2021/06/17

Characteristics based on Directive stayed almost unchanged.

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:- Confidentiality clause;- performance-related remuneration;- standardized Arrangement;- artificial acquisition of a loss-making company;- conversion of income;- circular transactions;- 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 with 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

The tax advantage is the benefit that could arise as a result of tax evasion, in particular the achievement of a lower tax in other states or jurisdictions.

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

Tax arrangement made available for implementations when it is ready, marketable and offered at the market.

When is a cross-border arrangement ready for implementation?

2021/06/17

Tax arrangement ready for implementations means that the customization of the arrangement has been completed.

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.The information to be provided to the Executive Director of the National Revenue Agency shall contain the following hallmarks, if applicable:1. the identification of the intermediary/s and the taxable person/s, including:a) their name;b) date of birth (in the case of an individual);c) a country or jurisdiction in which the intermediary or the taxable person is a resident for tax purposes;d) identification number for tax purposes;e) the persons that are associated enterprises to the relevant taxable person, where appropriate;2. description of the features of the scheme on the basis of which it is reportable;3. unique number of the tax scheme when the provision of information on the scheme is not initial;4. a summary of the content of the tax scheme, including a reference to the name by which it is commonly known, and a description in abstract terms of the relevant business activities or arrangements, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information the disclosure of which would be contrary to public policy;5. the date when the first step in the implementation of the reportable tax scheme has been made or is set to be made;6. national provisions by which the tax scheme is governed;7. value of the tax scheme;8. the identification of the Member States which are likely to be concerned by the tax scheme;9. the identification of any other person in a Member State likely to be concerned by the tax scheme, indicating to which Member States such person is linked.

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

2021/06/17

There are no deviations from the Directive.The information shall be submitted electronically and in a format and procedure approved by the order of the Executive Director of the National Revenue Agency, which shall be published on the website of the National Revenue Agency. A unique number shall be issued upon the initial provision of information on a cross-border tax scheme, which shall serve for the identification of the scheme in all Member States. An intermediary or a taxable person who has initially provided information on a tax scheme shall notify any other intermediary or taxable person on the scheme of the unique number issued. For any provision of information by an intermediary or a taxable person, a unique number of the reporting shall be issued, which is part of a scheme. The number shall serve to identify the specific provision of information in all Member States. The unique numbers and the relevant unique numbers issued in another Member State shall be stated as proof that the information on the scheme is provided by an intermediary or a taxable person.

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

2021/06/17

There are no deviations from the Directive.The information to be provided to the Executive Director of the National Revenue Agency shall contain the following hallmarks, if applicable:1. the identification of the intermediary/s and the taxable person/s, including:a) their name;b) date of birth (in the case of an individual);c) a country or jurisdiction in which the intermediary or the taxable person is a resident for tax purposes;d) identification number for tax purposes;e) the persons that are associated enterprises to the relevant taxable person, where appropriate;2. description of the features of the scheme on the basis of which it is reportable;3. unique number of the tax scheme when the provision of information on the scheme is not initial;4. a summary of the content of the tax scheme, including a reference to the name by which it is commonly known, and a description in abstract terms of the relevant business activities or arrangements, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information the disclosure of which would be contrary to public policy;5. the date when the first step in the implementation of the reportable tax scheme has been made or is set to be made;6. national provisions by which the tax scheme is governed;7. value of the tax scheme;8. the identification of the Member States which are likely to be concerned by the tax scheme;9. the identification of any other person in a Member State likely to be concerned by the tax scheme, indicating to which Member States such person is linked.

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

There are no deviations from the Directive.

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

2021/06/17

There are no deviations from the Directive.The information shall be submitted electronically and in a format and procedure approved by the order of the Executive Director of the National Revenue Agency, which shall be published on the website of the National Revenue Agency. A unique number shall be issued upon the initial provision of information on a cross-border tax scheme, which shall serve for the identification of the scheme in all Member States. An intermediary or a taxable person who has initially provided information on a tax scheme shall notify any other intermediary or taxable person on the scheme of the unique number issued. For any provision of information by an intermediary or a taxable person, a unique number of the reporting shall be issued, which is part of a scheme. The number shall serve to identify the specific provision of information in all Member States. The unique numbers and the relevant unique numbers issued in another Member State shall be stated as proof that the information on the scheme is provided by an intermediary or a taxable person.

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

Breach of the duty to notify (including an obligation to notify another intermediary or user on a legal professional privilege) - fine up to BGN 10,000.

What are the penalties?

2021/06/17

Breach of the duty to notify (including an obligation to notify another intermediary or user on a legal professional privilege) - fine up to BGN 10,000.

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 are no penalties for redundant reports.

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

2021/06/17

Yes. Fine for providing incomplete or untrue information is up to BGN 8,000.

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

DAC 2, DAC 3, DAC4, DAC 5 implemented into the Bulgarian legislation.

Are there any other special deviations from the Directive? 

2021/06/17

There are no other 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.

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 certain professions.

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?

Milena Mladenova
Milena Mladenova
Head of Audit Services | Certified Public Accountant