Models 234, 235 and 236 have been approved according to the Ministerial Order HAC / 342 of April 12 of this year, published in the BOE the following day. Said models refer to declaring information on certain tax planning mechanisms, outside our borders and which are also fiscally “aggressive”.
These statements are protected by the DAC6 directive, which establishes the obligation on the part of fiscal intermediaries (lawyers, economists, etc.) to declare said operations. The mechanisms that involve two member states of the European Union, or a member of the European Union and a third state and where identity signs concur, must be declared. These are:
1.-Intervention of fiscal intermediaries (persons or entities).
2.-Main benefit criterion: obtaining a tax benefit.
3.-General distinctive signs linked to the main benefit criterion:
a.-Perception of fees related to the tax savings of the mechanism.
b.-Application of standardized mechanism.
4.-Specific distinctive signs linked to cross-border operations.
In the case in which the transfer of information violates the legal regime of the duty of professional secrecy, the one obliged to declare such operations will not be the intermediary, but the client himself. The exempted intermediary must communicate said circumstance within a period of five days from the day following the birth of the information obligation to the other intermediaries involved and to the taxpayer.
Problem with professional secrecy and DAC6
The intermediary who provides neutral advice, who does not facilitate the establishment of a tax planning mechanism, is protected by professional secrecy.
The intermediary who develops, sells, manages or executes said mechanism is not covered by professional secrecy.
The data to declare basically they are:
-Declarant
-Intermediary (if it exists)
-Identification of the parties
-Type of operation, date, amount
-Mechanism applied
Model Types
Form 234 "Declaration of Information of certain cross-border tax planning mechanisms"
Said model has to be presented by intermediaries. If it does not exist or is subject to professional secrecy, it must be submitted by the taxpayer.
Cross-border mechanisms have to be declared in which distinctive signs exist within the cross-border mechanisms applied.
Form 235 "Information Statement for the update of certain tradable cross-border mechanisms"
The intermediary is the one who presents said model.
Updates of cross-border mechanisms designed and made available without the need for special adaptations are declared, provided they have been previously declared.
Form 236 "Declaration of Information on the use of certain cross-border tax planning mechanisms"
Said model is presented by the interested taxpayers.
Information is declared on mechanisms that have already been previously declared to the Administration.
Deadlines
The subject operations carried out in the period 2018-2020 or before the entry into force of the order, have until May 14, 2021 to be declared.
Model 234
It must be submitted within the first 30 calendar days following:
- The day after the intermediary transmits and the taxpayer definitively acquires the mechanism.
- The day after the cross-border mechanism is enforceable.
- At the moment in which a first phase of execution of the mechanism has been carried out.
Model 235
Once the calendar quarter in which marketable mechanisms previously declared in form 234 or in the last 235 have been made available, there will be a calendar month for their presentation.
Model 236
It will be presented in the last quarter of the calendar year following the one in which the use of cross-border mechanisms that should have been previously declared has occurred.
For any queries on cross-border tax issues, contact us and we will advise you personally.
