DAC6: Who Must Report, and When?
The intermediary
The reporting obligation rests primarily on the intermediary: the party that designs, markets, organises, makes available for implementation or manages the arrangement. The law also recognises the service provider (sometimes called the secondary intermediary): a party that provides aid, assistance or advice and, based on its knowledge and expertise, could reasonably have known that it was involved in a reportable arrangement. A bookkeeping firm that did not devise an arrangement, but does handle its execution, the accounts or the tax return, may therefore have its own reporting obligation.
An intermediary falls under the Dutch reporting obligation if it is resident or established in the Netherlands, has a permanent establishment here through which the services are provided, is incorporated under Dutch law, or is registered in the Netherlands with a professional association for legal, tax or advisory services.
Legal professional privilege
Lawyers and civil-law notaries can invoke their statutory legal professional privilege. They must then promptly inform the other intermediaries involved or, failing that, the taxpayer. Tax advisers and accountants who are not also a lawyer or notary have no statutory privilege and therefore remain subject to the reporting obligation themselves.
When does the taxpayer report?
The obligation shifts to the taxpayer in three situations: where the intermediary is outside the EU and has no connection with a Member State, where there is no intermediary (for example with an arrangement set up in-house), or where the intermediary invokes privilege and no other intermediary is involved. A foreign company that receives income or carries on activities in the Netherlands may, in certain circumstances, also have to report in the Netherlands itself.
Multiple parties and deadlines
Where there are several intermediaries, each of them has a reporting obligation. An intermediary is exempt if it can demonstrate that another intermediary has already filed the report. In practice this is done with the reference number that the Dutch Tax Administration issues upon filing. So request that number actively and keep it on file.
A report must be filed within thirty days. For the intermediary, the period starts on the earliest of three moments: the day after the arrangement is made available for implementation, the day after it is ready for implementation, or the moment the first step in its implementation is taken. For the service provider, the period starts on the day after it provided the aid or advice. Delivering advice can therefore already trigger the deadline.
Retroactive effect
The reporting obligation has applied since 1 July 2020, but has retroactive effect back to 25 June 2018. Arrangements whose first step was implemented between those dates had to be reported before 28 February 2021. An unfulfilled obligation from that period does not simply disappear. If you set up cross-border arrangements during those years, it is advisable to have this reviewed.