DAC 6 implementation in Luxembourg: What's important?

What information needs to be communicated

The information to be reported by the intermediaries (or the taxpayer itself if applicable) to the Luxembourg tax authorities in view of their communication shall contain the following, as applicable (collectively, the "Reportable Information"): 

a) the identification of intermediaries and relevant taxpayers, including their name, date and place of birth (in the case of an individual), residence for tax purposes, tax identification number and, where appropriate, the persons that are associated enterprises to the relevant taxpayer;

b) details of the hallmarks set out in the appendix of the DAC 6 Law that make the arrangement reportable;

c) a summary of the content of the reportable arrangement, including a reference to the name by which it is commonly known, if any, and a description in abstract terms of the relevant business activities or arrangements, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information the disclosure of which would be contrary to public policy;

d) the date on which the first step in implementing the reportable arrangement has been made or will be made;

e) details of the national provisions of the EU Member State involved that form the basis of the reportable arrangement;

f) the value of the reportable arrangement;

g) the identification of the EU Member State of the relevant taxpayer(s) and any other EU Member States which are likely to be concerned by the reportable arrangement;

h) the identification of any other person likely to be affected by the reportable arrangement by indicating as well to which EU Member States such person is linked.

The reference to "as applicable" in the context of the information to be reported to the Luxembourg tax authorities, which is included in DAC 6 as well as the DAC 6 Law, seems to indicate that the intermediary has not to report to the Luxembourg tax administration all the above mentioned information but only the available information (i.e., being in his possession). Such interpretation would also be in line with the DAC 6 Bill commentaries, which specify that DAC 6 does not impose on intermediaries or taxpayers any specific obligation beyond their existing professional obligations to seek actively information, which they would not have had in their possession in the first place.

Written confirmation would nevertheless be helpful as the presence within the DAC 6 Law of sanctions imposed for incomplete reporting could be considered as leaving room for a different interpretation. To prevent that intermediaries need to actively seek missing information from the taxpayer itself or other intermediaries to avoid potential sanctions for incomplete reporting, it should be ensured that the draft reporting form, once available, will provide an optionality regarding at least some information that needs to be reported, contrary to an approach whereby all fields would be mandatory .

A detailed summary of the main topics regarding the DAC 6 Law may be found on our Hogan Lovells blog:

  1. What are the origins of DAC 6?
  2. Who needs to report?
  3. To whom needs to be reported?
  4. What kind of arrangements need to be reported?
  5. What information needs to be communicated?
  6. When has the reporting to be made?
  7. What penalties are foreseen?
  8. Concluding remarks

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