The Netherlands

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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 differences.

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. In case there is no intermediary involved (as defined above), the reporting obligation in respect of a reportable cross-border arrangement lies with the relevant taxpayer.

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

2021/06/17

These actions are not defined.

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

There are no deviations from the Directive.

Are there any deviations from the Directive in defining the relevant taxpayer?

2021/06/17

There are no deviations from the Directive.

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 proof for demonstrating that the same information has been reported in another member state is defined. 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

The proof for demonstrating that the same information has been reported in another member state is defined. 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

The proof for demonstrating that the same information has been reported in another member state is defined. 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

The proof for demonstrating that the same information has been reported in another member state is defined. 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

There is no specific guidance.

Material scope of application

Are national tax arrangements subject to reporting under the Directive?

2021/06/17

National tax arrangements are subject to report. E.g. the merger of two Dutch entities with a foreign parent is subject to reporting.

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

2021/06/17

There are no deviations from the Directive.

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.

How is a tax advantage defined?

2021/06/17

There is no explicit definition in the local legislation.

Are there any deviations from the Directive in defining a cross-border arrangement?

2021/06/17

There are no deviations from the Directive.

Is there a white list defining arrangements explicitly excluded from a reporting obligation? If yes, please provide details.

2021/06/17

No white list exists. However, the guidance from the Ministry of finance provides for some exemptions. E.g. expat regime 30% ruling.

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

There are no deviations from the Directive.

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

2021/06/17

There is no specific guidance.

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 is no specific guidance.

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

There are no deviations from 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?

2021/06/17

There are no deviations from the Directive.

When is the reporting deadline for arrangements for which the event triggering the reporting obligation lies after 1 January 2021?

2021/06/17

There are no deviations from the Directive.

Penalties

In which cases are penalties imposed?

2021/06/17

For not filing a report andfor late filing of a report.

What are the penalties?

2021/06/17

Max. EUR 830,000.

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

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

The penalties do not differ.

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?

2021/06/17

Belastingdienst.

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

There are no other obligations.

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

Is there legal professional privilege and in how far has it been considered for allocating the reporting obligation? The intermediary has a primary reporting obligation. In the case that there is no intermediary, the obligation shifts to the relevant taxpayer. There is a legal professional privilege applicable to tax layers (not tax advisors). If tax layers exercise their legal privilege a reporting obligation shifts to the relevant taxpayer.

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

2021/06/17

Yes.

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

2021/06/17

Yes.

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

2021/06/17

No difference.

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

2021/06/17

Tax layers.

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

The intermediaries that make use of professional privilege need to announce to the Tax Authority that they will use their professional privilege and not report under DAC6.

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

2021/06/17

Notification needs to be passed to the Tax Authority.

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

2021/06/17

No.

Erik Stroeve
Partner