DAC 6 Reporting Deferred in the UK

The UK government has today announced that the first reporting deadline under DAC 6 will be deferred for 6 months to allow taxpayers and advisors impacted by COVID-19 additional time to comply with their obligations. The first reports under DAC 6 will now be due by 31 January 2021.

HMRC’s International Exchange of Information Manual has been updated with details of the new reporting deadlines (IEIM800010), which are as follows:

• For arrangements where the first step in the implementation took place between 25 June 2018 and 30 June 2020 (the “lookback period”), reports must be made by 28 February 2021, instead of by 31 August as originally required.
• For arrangements where the reporting trigger (see below) occurs between 1 July 2020 and 31 December 2020, reports must be made within the period of 30 days beginning on 1 January 2021. Under the original rules, such arrangements would have had to be reported within 30 days of the trigger point being reached.
• Arrangements which become reportable on or after 1 January 2021 must be reported as normal (within 30 days of the reporting trigger).

The International Tax Enforcement (Disclosable Arrangements) Regulations 2020 (the “Regulations”) will be amended to implement the new deadlines. The un-amended Regulations are due to come into force on 1 July 2020, but HMRC have confirmed that, even if the planned amendments have not been made by then:

• no action will be taken for non-reporting during any period between 1 July and the date that the amended Regulations come into force;
• there is therefore no expectation that reports will be made in July; and
• the electronic reporting system will not be turned on in July, but rather at a later date ahead of the deferred deadlines.

Background

“DAC 6” is the name commonly given to an EU regime which requires taxpayers and their advisors to disclose certain cross-border tax planning arrangements (involving at least one EU jurisdiction or the UK) to the tax authorities in their home country.

The UK has implemented DAC 6 by way of the Regulations, which come into force from 1 July 2020.  Notwithstanding its EU origins, it is expected that the regime will continue to apply in the UK after the Brexit transition period ends.

Under DAC 6, prescribed details of cross-border arrangements that have certain “hallmarks” that may be indicative of tax avoidance must be disclosed to the tax authorities in the home country of the person with the reporting obligation. The information disclosed is then shared with the authorities in other EU countries in order to enable those authorities to counteract the tax planning.

The reporting obligation falls primarily on “intermediaries” – a broad term that encompasses most parties participating in or aiding, assisting or advising on the design, marketing, organisation, or implementation of a reportable arrangement. Any such party connected to an EU member state through tax residence, a permanent establishment, incorporation, or registration with a relevant professional association will be an intermediary. Where there is no such intermediary, the obligation falls on a taxpayer who is ready or has started to implement a reportable arrangement, or to whom a reportable arrangement has been made available for implementation.

Commencement of DAC 6 in the UK

Although DAC 6 only comes into force on 1 July 2020, it applies to any reportable arrangements whose implementation started on or after 25 June 2018. Where the implementation started between 25 June 2018 and 30 June 2020, the period for making the report was to have been 1 July to 31 August 2020. This is the period that has now been deferred to the end of February 2021.

For any arrangements whose implementation had not started by 1 July 2020, the normal reporting period was to have been 30 days from the earliest of the following reporting triggers:

• the day after arrangements are made available for implementation;
• the day after arrangements are ready for implementation;
• the day that the first step is taken in implementing the arrangements; or
• the day after a UK intermediary provides aid, assistance or advice with respect to the arrangements.

Following the government’s announcement, the reporting period for any arrangements where the reporting trigger occurs between 1 July 2020 and 31 December 2020 is 30 days beginning on 1 January 2021.  For arrangements that become reportable on or after 1 January 2021, the reporting period will be 30 days from the occurrence of the trigger point.

In the case of certain arrangements that are marketed to multiple taxpayers, there is also a recurring reporting obligation after the initial disclosure. Under the Regulations, recurring reports must be made at the end of every three month period beginning with the date of the original return. The updated guidance states that the first of these must now be made by 30 April 2021.

Comment

Although many may feel frustrated that this deferral has been announced by the Government at the eleventh hour, it should prove to be a welcome relief to taxpayers, advisers and financial institutions whose ability to comply with the new regime has been hampered by the current pandemic (or who were otherwise not yet ready for the August deadline).