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

As per the definition, the intermediary is represented by any person that designs, markets, organises or makes available for implementation or manages the implementation of a reportable cross-border 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

No.In case there is no intermediary involved 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

The relevant taxpayer is obliged to report in case there was no intermediary involved.Intermediaries which, according to the law, are under the duty of professional secrecy are required to report cross-border arrangements, provided they have the written consent of the relevant taxpayer. In case the intermediary is not released by the relevant taxpayer from its confidentiality obligation, the intermediary under the duty of professional secrecy must notify, in writing, any other intermediary involved in the cross-border arrangement about his inability to report, thus transferring this reporting obligation to the respective intermediary. If there is no such other intermediary, the relevant taxpayer will ultimately have the reporting obligation.

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

In cases where a multiple reporting obligation arises, the intermediary shall be exempt from filing the information in Romania if it holds and presents to the Romanian Tax Authorities conclusive proof, demonstrating that the same information has been reported to the relevant tax authority from another member state.However, at this point, there is no further guidance with reference to what conclusive proof refers to.

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

An intermediary shall be exempt from filing the information with the Romanian Tax Authorities only to the extent that there is conclusive proof, demonstrating that the information has already been filed with the Romanian Tax Authorities by another intermediary.However, at this point, there is no further guidance with reference to what conclusive proof refers to.

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

Relevant taxpayers shall be exempt from the reporting obligation if they hold conclusive proof demonstrating that the information was filed with the Romanian Tax Authorities by another relevant taxpayer.The relevant taxpayer reports to the Romanian Tax Authorities information regarding the use of the reportable arrangement each year the arrangement is in place.However, at this point, there is no further guidance with reference to what conclusive proof refers to.

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

Relevant taxpayers shall be exempt from the reporting obligation if they hold conclusive proof demonstrating that the information was filed with the Romanian Tax Authorities by another relevant taxpayer.The relevant taxpayer reports to the Romanian Tax Authorities information regarding the use of the reportable arrangement each year the arrangement is in place.However, at this point, there is no further guidance with reference to what conclusive proof refers to.

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 not subject to report.

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

2021/06/17

Direct taxes are affected.There are no deviations from the Directive.

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

2021/06/17

In the case of hallmark B.1., the national law expressly mentions that artificial transactions also refer to artificial cross-border transactions, as defined in the local tax law. Artificial cross-border transactions are defined in the local law as cross-border transactions that have no economic substance and cannot be used in the normal course of business, their essential scope being to avoid taxation or to obtain tax advantages otherwise not available.In the case of hallmark C.1, b), the local legislation expressly mentions that the jurisdiction under scrutiny is the one that does not impose any corporate tax or imposes corporate tax at the rate of zero or less than 1%.

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 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

There is no explicit definition in 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

There is no white list defining arrangement explicitly excluded from reporting obligation.

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 is no specific guidance.

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

Intermediaries and taxpayers report to the Romanian Tax Authorities information regarding reportable cross-border arrangements, for which the first step was implemented between 25.06.2018 and 30.06.2020. The deadline for filing the report is 28.02.2021.After 01.07.2020, intermediaries/ taxpayers report to the Romanian Tax Authorities information regarding reportable cross-border arrangements made available to them or information they hold or control in 30 days. In the specific case of cross-border arrangements carried out between 1 July 2020 – 31 December 2020, the 30-day reporting deadline has as starting date 1 January 2021.

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

28.02.2021.

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

31.01.2021.

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

2021/06/17

30 days after the triggering event.

Penalties

In which cases are penalties imposed?

2021/06/17

- for not filing a report or late filing of a report;- in the specific case of the intermediary, failure to notify another intermediary involved or the relevant taxpayer with reference to the pass-on of the reporting obligation.

What are the penalties?

2021/06/17

1. For not filing a report or late filing of report: fine between RON 20,000 and RON 100,000 (i.e., approx. EUR 4,000 and EUR 20,500);2. In the specific case of the intermediary, failure to notify another intermediary involved or the relevant taxpayer with reference to the pass-on of the reporting obligation: fine between RON 5,000 and RON 30,000 (i.e., approx. EUR 1,000 and EUR 6,200)

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

There is no official guidance on gradations for the intervals mentioned below. The actual value applied is decided on a subjective basis by the tax administration on a case by case basis:- For not filing a report or late filing of report: fine between RON 20,000 and RON 100,000 (i.e., approx. EUR 4,000 and EUR 20,500);- In the specific case of the intermediary, failure to notify another intermediary involved or the relevant taxpayer with reference to the pass-on of the reporting obligation: fine between RON 5,000 and RON 30,000 (i.e., approx. EUR 1,000 and EUR 6,200)

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

Romanian legal entities, resident natural persons and the foreign legal entities operating in Romania through a permanent establishment have the obligation to register with the Romanian Tax Authorities the agreements concluded with non-resident entities/ individuals performing services in Romania.

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?

2021/06/17

National Agency of Fiscal Administration.

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

The primary reporting obligation lies with the intermediary.The relevant taxpayer is obliged to report in case there was no intermediary involved.Intermediaries which, according to the law, are under the duty of professional secrecy are required to report cross-border arrangements, provided they have the written consent of the relevant taxpayer. In case the intermediary is not released by the relevant taxpayer from its confidentiality obligation, the intermediary under the duty of professional secrecy must notify, in writing, any other intermediary involved in the cross-border arrangement about his inability to report, thus transferring this reporting obligation to the respective intermediary. If there is no such other intermediary, the relevant taxpayer will ultimately have the reporting obligation.

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

Professional secrecy.

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

2021/06/17

The concepts of "professional privilege" or "professional secrecy", depending on the case, are defined as per the local legislation governing specific professions.

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

2021/06/17

The applicability of "professional secrecy" or "professional privilege" is defined in local legislation governing specific professions.

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 an obligation.The intermediary subject to professional secrecy may report a cross-border arrangement only with the written consent of the relevant taxpayer.

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

2021/06/17

The intermediaries subject to professional secrecy are required to notify in writing other intermediaries or the relevant taxpayer in case no other intermediaries exist.

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

2021/06/17

No.

Edwin Warmerdam
Partner