Reportable cross-border arrangements

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ACD : Disclosure in relation to a cross-border arrangement

The requirement for financial-sector professionals to report cross-border arrangements is part of the EU policy on the automatic exchange of financial account information in tax matters.

A 'cross-border' arrangement is an arrangement involving either 2 European Union (EU) Member States, or a Member State and a third country. A cross-border arrangement must be reported if it:

  • could be used for aggressive tax planning purposes; and
  • exhibits certain features or hallmarks considered potentially indicative of aggressive tax planning.

The arrangements reported by intermediaries – banks, tax and financial advisors, consultants, etc. – or by taxpayers themselves are consolidated in a secure centralised European database which Member States can access.

Cross-border arrangement information must be filed with the Luxembourg Inland Revenue (Administration des contributions directes – ACD) via MyGuichet.lu.

Personnes concernées

Intermediaries or taxpayers concerned

Any:

  • intermediary, i.e., any person who:
    • devises, markets or organises a reportable cross-border arrangement; or
    • makes such an arrangement available to others for implementation, or themselves manages its implementation; or
    • is aware, or could reasonably be expected to be aware, that they have undertaken to provide, either directly or through other persons, aid, assistance or advice in connection with:
      • devising, marketing or organising such an arrangement; or
      • making such an arrangement available to others for implementation, or managing its implementation;
  • concerned taxpayer, i.e., any person:
    • to whom a reportable cross-border arrangement has been made available for implementation; or
    • who is prepared to implement such an arrangement; or
    • who has implemented the first step in such an arrangement.

Cross-border arrangements concerned

Types of cross-border arrangements concerned

Cross-border arrangements involving several EU Member States or a Member State and a third country if at least one of the following conditions is satisfied:

  • the parties to the arrangement are not resident for tax purposes in the same state;
  • one or more parties to the arrangement are resident for tax purposes in several states simultaneously;
  • one or more parties to the arrangement conduct business in another state through a permanent establishment located in that state. The arrangement must apply to all or part of the business activities conducted through the permanent establishment;
  • one or more parties to the arrangement conduct business in another state, but are not resident for tax purposes in that state, nor do they have a permanent establishment in the state in question;
  • such an arrangement could impact on the automatic exchange of information or the identification of beneficial owners. Readers are reminded that filing with the Luxembourg Register of Beneficial Owners is but one aspect of the identification process.

An arrangement may comprise a series of arrangements, or involve several steps or parties.

Reportable cross-border arrangements

Reportable cross-border arrangements are those which:

  • apply to one or more types of taxes or duties, other than:
    • VAT;
    • customs duties;
    • excise duties;
    • mandatory social contributions;
    • fees for the issuing of certificates or other documents by public authorities;
    • duties of a contractual nature paid for a public service;
  • exhibit at least one of the hallmarks listed in the annex to the law of 25 March 2020 on reportable cross-border arrangements.

Conditions préalables

Intermediaries

To be considered an intermediary, an individual must satisfy at least one of the following additional conditions:

  • be a resident for tax purposes in a Member State;
  • possess, in a Member State, a permanent establishment through which the services in connection with the arrangement are provided;
  • be incorporated in or subject to the laws of a Member State;
  • be registered with a professional association representing providers of legal, tax or advisory services in a Member State.

The intermediary must report a cross-border arrangement to the ACD if Luxembourg is the Member State at the top of the list below:

  • the Member State where the intermediary is resident for tax purposes;
  • the Member State where the intermediary possesses a permanent establishment through which the services in connection with the arrangement are provided;
  • the Member State where the intermediary is incorporated, or to whose laws they are subject;
  • the Member State where the intermediary is registered with a professional association representing providers of legal, tax or advisory services.

Individual taxpayers

A taxpayer who is involved in a reportable cross-border arrangement must disclose the required information to the ACD only if:

  • no intermediaries are involved; or
  • the intermediary involved has been exempted from reporting.

When several taxpayers are involved, the obligation to file with the ACD lies with the one who:

  • approved the reportable cross-border arrangement, with the intermediary;
  • manages the implementation of the arrangement.

Délais

Intermediaries must disclose the required information to the ACD within 30 days. This 30-day window begins:

  • the day following that on which the cross-border arrangement is made available for the purpose of implementation; or
  • the day following that on which the cross-border arrangement is ready for implementation; or
  • when the first step in the implementation of the cross-border arrangement is completed.

The earliest of these dates shall apply.

Intermediaries who have provided, either directly or through other persons, aid, assistance or advice in connection with devising, marketing or organising an arrangement, or made such an arrangement available for implementation, or have managed its implementation, are also required to disclose the required information within 30 days.

This 30-day window begins on the day following that on which the intermediary provided such aid, assistance or advice.

Concerned taxpayers must disclose the required information to the ACD within 30 days. This 30-day window begins:

  • the day following that on which the reportable cross-border arrangement is:
    • made available for implementation to the taxpayer in question; or
    • ready to be implemented by the taxpayer in question; or
  • when the first step in the implementation of the arrangement is completed, as far as the taxpayer in question is concerned.

The earliest of these dates shall apply.

For reportable cross-border arrangements for which the first step was implemented between 25 June 2018 and 30 June 2020, the intermediaries and taxpayers concerned must provide the required information by no later than 28 February 2021.

Modalités pratiques

Information to disclose

The disclosing party must file the following information with the ACD:

  • the identities of the intermediaries and taxpayers involved: their name, date and place of birth (in the case of natural persons), tax residence and tax identification number.
    When an associated enterprise affiliated with the taxpayer in question is involved in the reportable cross-border arrangement, the name, date and place of birth (in the case of natural persons), tax residence and tax identification number of the associated enterprise must also be provided;
  • details on the hallmarks, listed in the annex to the Law of 25 March 2020, that require the cross-border arrangement to be reported;
  • a summary of the contents of the reportable cross-border arrangement:
    • where relevant, a reference to the name by which the arrangement is commonly known;
    • a brief description of marketing activities or relevant arrangements, without disclosing any trade, industrial or professional secrets, or any business processes or information whose disclosure would be contrary to public policy;
  • the date on which the first step in the implementation of the reportable cross-border arrangement was or will be completed;
  • details on the legal provisions in the states concerned, on which the reportable cross-border arrangement is based;
  • the value of the reportable cross-border arrangement;
  • the Member State of residence of the taxpayer(s) in question, as well as any other Member State likely to be involved in the reportable cross-border arrangement;
  • the identities of any other persons likely to be involved in the reportable cross-border arrangement, and the Member States where they have their residence.

Filing

The disclosing party must file the required information with the ACD electronically through the secure government platform, MyGuichet.lu.

Reports can be filed in either of 2 ways:

  1. using the online procedure on MyGuichet.lu (requires a LuxTrust certificate); or
  2. dragging and dropping a special XML file on MyGuichet.lu (requires a LuxTrust certificate).

Checks performed by the ACD

The ACD performs checks to ascertain that intermediaries and taxpayers have fulfilled their disclosure obligations.

Checks are also performed to ensure that the persons concerned have not sought to avoid the disclosure of information.

Obligations

Every year that the arrangement is used, the taxpayer in question must disclose how it is used when filing their annual income tax return.

In the case of marketable arrangements, intermediaries must file a report every 3 months. This report contains details on any new reportable information that has arisen since the last report. Such information includes:

  • the identities of the intermediaries and taxpayers concerned;
  • the date on which the first step in the implementation of the reportable arrangement was or will be completed;
  • the Member State(s) involved;
  • the identities of any other persons who may be involved.

This report is to be filed for the first time by 30 April 2021 and applies to reportable cross-border arrangements, cross-border arrangements that have been made available for implementation, cross-border arrangements that are ready to be implemented, and cross-border arrangements in which the first step was implemented between 1 July 2020 and 31 December 2020.

Exemptions

Exemptions when several intermediaries or taxpayers are involved

When several intermediaries are involved in the same cross-border arrangement, the obligation to disclose the required information is incumbent upon all of them.

However, in this case, the intermediary is exempted from filing with the ACD if they can prove that the information has already been filed in another Member State.

Furthermore, concerned taxpayers are not exempted from the obligation to disclose the required information unless they can prove that such information has already been filed by another concerned taxpayer.

Exemptions for certain professions bound to professional secrecy

Lawyers, chartered accountants and statutory auditors are exempted from disclosing to the ACD any information to which they may be privy, they possess or audit in connection with reportable cross-border arrangements.

However, disclosure is required if they act outside the scope of their profession.

Moreover, whenever such professionals act as intermediaries, they must notify all other intermediaries, or the concerned taxpayer, of the disclosure obligations incumbent upon them. Such notification must be given within 10 days of the earliest of the following dates:

  • the day following that on which the cross-border arrangement is made available for implementation; or
  • the day following that on which the cross-border arrangement is ready for implementation; or
  • when the first step in the implementation of the cross-border arrangement is completed.

In that case, the professional is required to provide the disclosing party with the information they need to fulfil the disclosure obligation.

Note: the 10-day window, for filings in connection with reportable cross-border arrangements, cross-border arrangements made available for implementation, ready-to-implement cross-border arrangements and cross-border arrangements in which the first step was implemented between 1 July 2020 and 31 December 2020, begins on 1 January 2021.

Sanctions

In the event of failure to disclose the required information, late disclosure, disclosure of incomplete or inaccurate data, failure to fulfil notification requirements or late notification, an intermediary or taxpayer who is subject to disclosure or notification obligations in Luxembourg risks a fine of up to EUR 250,000.

Appeals

An intermediary or taxpayer who is fined by the ACD may lodge an appeal for reversal with the administrative tribunal, subject to compliance with the statutory time limits.

Services en ligne et formulaires

Online services

ACD : Déclaration liée à un dispositif transfrontière

Other language(s)

Organismes de contact

Luxembourg Inland Revenue (ACD)

Division on the Exchange of Information and Withholding Tax on Interest (DAC 6)

  • Division on the Exchange of Information and Withholding Tax on Interest

    Adresse :
    Luxembourg Luxembourg
    Phone:
    (+352) 247 52 461
    Email address:
    dac6@co.etat.lu

Démarches et liens associés

Procedures

Filing of beneficial ownership details with the Register of Beneficial Owners

Links

Informations complémentaires

Dispositifs transfrontières devant faire l’objet d’une déclaration

sur le site de l’Administration des contributions directes (ACD)

Références légales

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