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

There are no deviations from the Directive, thus distinguishing the so-called promotor and service provider. Only in the case of the service provider, we have a distinction between an entity with legal personality and not legal personality. In the first case the prevailing opinion is the notion should be applied to the entity and not to individual personnel employed by an entity; differently from what is provided for in the case of entities without legal personality.

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

2021/06/17

If an MNE or an entity within a group has a tax department, the MNE or entity concerned could qualify as an intermediary (but not the tax department solely).

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

2021/06/17

1. Design: this relates to the conception of the mechanism and consists of devising one or more steps which, if implemented, result in the achievement of one of the effects from which the obligation to disclose may arise; 2. Marketing: the activity aimed at making the mechanism available to the user and, generally, also includes the activities of dissemination, promotion and sale of the same; 3.Organization: consists of the preparation, coordination and monitoring of all the steps necessary for the concrete implementation of the mechanism; 4. Making available: when a cross-border mechanism is defined in all its constituent elements and communicated to potential users; 5. Independent management of the entire implementation: when the promoter, irrespective of whether the mechanism has been developed by itself or by a third party, carries out all the activities necessary for the implementation of the mechanism, even if for the benefit of a client.

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

There are no deviations from the Directive.

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

2021/06/17

No, there are no deviations from the Directive.

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.

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 Directive.

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 Directive.

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

There are no deviations from the Directive.

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

2021/06/17

In Italy, the revenue agency makes a check after notification.

Material scope of application

Are national tax arrangements subject to reporting under the Directive?

2021/06/17

National tax arrangements are not subject to reporting.

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

2021/06/17

In Italy, are included taxes like IRPEF, IRES, and related additional taxes, IRAP, local taxes and other indirect taxes (registration tax, stamp duty), IVAFE and IVIE.

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

2021/06/17

There are no deviations from the Directive.

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

There is no explicit definition in the local legislation; however, there is a prevailing market practice as to the concrete questions to be raised in order to conduct the main benefit test.

How is a tax advantage defined?

2021/06/17

The tax advantage: is calculated as the difference between the taxes to be paid on the basis of one or more cross-border mechanisms and the same taxes that would be payable in the absence of such mechanism(s).

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

There is no specific guidance from the Italian tax authorities.

When is a cross-border arrangement ready for implementation?

2021/06/17

There is no specific guidance from the Italian tax authorities.

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

2021/06/17

There is no specific guidance from the Italian tax authorities.

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

There is no specific guidance.

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

2021/06/17

The entire report needs to be exchanged by the intermediary, except if the taxpayer obtained the "by default" reporting obligation.

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

Following the adoption of Council Directive 2020/ 876, allowing EU Member States to defer the DAC6 reporting deadlines by up to six months, Italy has opted to defer the reporting deadlines as follows:1. February 28, 2021, for “historical arrangements”, i.e. reportable cross-border arrangements the first step of which was implemented between June 25, 2018, and June 30, 2020.2. The start date for the 30 days reporting deadline to begin on January 1, 2021 (originally July 1, 2020).3. Within 30 days of January 1, 2021, for reportable cross-border arrangements made available for implementation, ready for implementation, or where the first step in its implementation is made during the deferral period (July 1 – December 31, 2020).4. April 30, 2021, for the first periodic report on marketable arrangements.

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

2021/06/17

Not stated in proposal decree.

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 case of lack of reporting, late reporting, incomplete or inexact reporting, or in case of absence of notification or late notification by the Intermediary(ies) or the taxpayer concerned is exposed to penalties.

What are the penalties?

2021/06/17

In case of omitted communication: maximum 31,500€; in case of incomplete or incorrect communication: maximum 10,500€.

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 specific penalities for redundant reports under the DAC 6 law.

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

2021/06/17

Yes. In case of omitted communication: maximum 31,500€; in case of incomplete or incorrect communication: maximum 10,500€.

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 other disclosure regimes exist.

Are there any other special deviations from the Directive? 

2021/06/17

There are no 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 intermediary has the primary obligation to report. There are also on-going obligations on the relevant taxpayer to report. There is nothing requiring the reporting of legally professional privileged information, but an intermediary with legal professional privilege is required to inform any other intermediary, or if none, the relevant taxpayer of the obligation to report.

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

2021/06/17

No.

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

There is no guidance.

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

2021/06/17

Professional secrecy can apply to intermediaries for example to 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

Professional secrecy is not an obligation.

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

2021/06/17

Nothing in the Italy EU DAC6 Regulations requires a UK intermediary to disclose any privileged information. Subject to this proviso, a UK intermediary must notify any other intermediary, or, if none, the relevant taxpayer, as soon as reasonably practicable of the reporting obligations of a UK intermediary or a UK relevant taxpayer as the case may be, in relation to the reportable cross-border arrangement to which the privileged information relates.

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

2021/06/17

No.

Giovanni Crenna
Partner