Luxembourg

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Personal scope of application As per 26 June 2022

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

2021/06/17

No deviations.

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 the same as in the Directive. Individual advisors can qualify as Intermediary.

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

2021/06/17

In principle no, but not explicitly confirmed.

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

2021/06/17

Not specifically defined. Guidance by industry associations for their members in progress (ABBL, ALFI and ACA; i.e. the banking, funds and insurance associations - we are represented in these workgroups to help establish guidance.

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

2021/06/17

Yes. Same as in 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

No. Same as in the Directive.

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

2021/06/17

No. The same as in the Directive.

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. Same as in 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

No. Same as in 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

No. Same as in 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

No. Same as in the Directive.

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

2021/06/17

Not confirmed yet.

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

No. Same as in the Directive.

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

2021/06/17

No. Same as in the Directive.

Which hallmarks are linked with the main benefit test?

2021/06/17

Same as in the Directive.

How is the main benefit test defined?

2021/06/17

Same as in the Directive.

How is a tax advantage defined?

2021/06/17

Not defined.

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

Same as in the Directive.

When is a cross-border arrangement ready for implementation?

2021/06/17

Same as in the Directive.

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

2021/06/17

Same as in the Directive.

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

2021/06/17

No. Same as in the Directive.

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

2021/06/17

No. Same as in the Directive. No details available yet, but based on informal discussions, it seems the secured data channel would not be operated by the same actors as those involved on FATCA/CRS reporting (Six Payment Systems/Fundsquare); i.e. it could well be a "free of charge" portal put at disposal by the Ministry.

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

2021/06/17

No information available yet.

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

No. Same as in the Directive.

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

2021/06/17

Information not available yet.

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 those under legal privilege (likely extended to professional secrecy), the Intermediary(ies) or the taxpayer concerned is exposed to penalties.

What are the penalties?

2021/06/17

Penalties up to 250,000 EUR.

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

2021/06/17

No.

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

Not covered in the draft article on sanctions; however could in our opinion lead to severe sanctions under the GDPR is personal data were exchanged that should not have been exchanged.

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

2021/06/17

No distinction; discretionary judgement by the authorities to impose a fine up to 250,000 EUR.

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 intermediary(ies) need to report (or one or several of them based on agreement who reports, under the rules of the Directive). The taxpayer only reports by default, in the absence of Intermediary(ies). There is a legal privilage (under the initial draft law, for lawyers only; however based on State Council objections in respect of discrimanatory treatment, an amendment to the draft law is pending to extend legal privilege to those falling under professional secrecy, such as auditors and accountants).

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

2021/06/17

Those subject to legal privilege (likely extended to professional secrecy) need to inform the Intermediary / the taxpayer within 10 days. Under the initial draft law, those subject to legal priviledge also needed to report certain data; however this obligation may possibly be deleted.

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?

Alain Verbeken
Director Tax