Notification requirement for cross-border constructions

From the first day of January 2021, intermediaries will be required to report cross-border constructions used for tax avoidance to the tax authorities.

Who has to report?

The intermediary that invents, offers, sets up the construction, makes the construction available for implementation or manages the implementation of the construction must report the construction if it has a relationship with an EU member state (for example if the state is established in the EU).

An intermediary who has provided help, assistance, or advice in inventing, offering, setting up, making available for implementation or managing the implementation of a construction must also report this.

Only the intermediary with a legal right to refuse to give evidence in accordance with article 53a of the General Tax Act, such as a civil-law notary, can invoke his right to refuse to give evidence. The relevant intermediary does not have to notify by himself, but he does have to notify the other intermediaries concerned, or in the absence thereof the taxpayer himself, of the fact that he is making use of his right to refuse to give evidence. Tax advisers and accountants do not have legal right to refuse to give evidence.

The notary only has to inform intermediaries who he knows are involved in the same notifiable cross-border construction. If several intermediaries are involved in the same construction, only one intermediary has to report.

What constructions should be reported?

First of all, check if the construction is qualified as a cross-border construction. Whether this construction must be reported depends on whether the construction can be qualified under one of the essential characteristics.

The essential characteristics can be found as an annex to the directive. For example, it is an essential characteristic if deductions for the same depreciation are claimed in more than one jurisdiction.

Or, for example, a construction involving a transfer of intangible assets that are difficult to value. When a construction is covered by one of the essential characteristics in A, B, C.1.b.i, C.1.c, and C.1.d (see annex), the construction needs to be reported only if the main benefit test has been passed.

Main benefit test
The main benefit test has been passed if the main benefit or one of the main benefits of the construction is that a tax benefit is expected. The objective facts and circumstances of the construction must be tested.

What kind of taxes?
The requirement to report includes corporation tax, income tax, payroll tax, dividend tax and inheritance and gift tax. Only constructions that relate to turnover tax, customs duties, excise duties and social security contributions, fees and charges do not have to be reported.

What does the notification look like?
The intermediary invoking the legal right to refuse to give evidence must inform other intermediaries involved in the construction or, in the absence thereof, the relevant taxpayer, at the start of the instruction. If it is due to the civil-law notary that the notification is not made on time or in full, an administrative fine of up to EUR 830,000 may be imposed on him. There are no additional obligations regarding the content of this notification. However, it is advised to record the notification in the file.

When to report?
From the first day of January 2021 the constructions must be reported. The following deadlines apply:

• Retroactive effect
  The constructions in which the intermediary is involved, the first step of which has been implemented in the period 25 June 2018 to 1 July 2020, must be reported before 28 February 2021.
• Transition period
  The constructions in which the intermediary is involved and which have been made available for implementation, are ready for implementation or in which the first step in the implementation of the constructions has been taken in the period form 1 July 2020 to 1 January 2021, must be reported before 31 January 2021.
• New notifications
  The constructions in which the intermediary is involved from 1 January 2021 must be reported within 30 days from the day after the construction has been made available for implementation, is ready for implementation or after the first step of implementation has been taken.
• Market-ready constructions
  The above deadlines also apply to market-ready constructions.