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April 7, 2021
Spanish Council of Ministers approves MDR regulations
The Spanish Parliament approved final legislation to implement the European Union (EU) Directive on the mandatory disclosure and exchange of cross-border tax arrangements (referred to as DAC6 or the Directive) in December 2020. The Spanish legislation was published in the State Official Gazette on 30 December and entered into force on 31 December, being effective from that same date.
The final Spanish Mandatory Disclosure Rules (MDR) legislation is very concise and broadly aligned to the requirements of the Directive.
On 6 April 2021, the Spanish Council of Ministers approved the Royal Decree amending the Spanish regulations of tax management and tax audit, approved by Royal Decree 1065/2007, dated 27 July 2007 (Spanish MDR Regulations). This new Royal Decree is approved to further implement the Directive.
Under DAC6, taxpayers and intermediaries are required to report cross-border reportable arrangements from 1 July 2020. However, reports will retrospectively cover arrangements where the first step is implemented between 25 June 2018 and 1 July 2020.
Currently, the text of the Spanish MDR regulations has not been published, only a press release has confirmed approval. Also, the tax forms to be submitted by intermediaries or relevant taxpayers have not been approved yet. The approval of the tax forms requires a ministerial order, which is expected to be approved soon.
In principle, according to the literal wording of the press release, arrangements performed during the transition period will have to be reported within 30 days from the date the ministerial order approving the tax forms is published; arrangements performed going forward will have to be reported within 30 days beginning the day after the reportable cross-border arrangement is made available for implementation, or is ready for implementation, or when the first step in its implementation is taken, whichever occurs first. Also, the press release indicates that the Spanish MRD Regulations will establish a quarterly reporting obligation for those arrangements that qualify as a “marketable arrangement” and an annual reporting obligation to declare the utilization in Spain of the cross-border arrangements by the taxpayers (to be filed in the last quarter of the year following the year when the arrangement started to be used).
Determining if there is a reportable cross-border arrangement raises complex technical and procedural issues for taxpayers and intermediaries. Taxpayers and intermediaries who have transactions or invest in Spain should review their policies and strategies for logging and reporting tax arrangements - and should be knowledgeable of what other intermediaries may be reporting - so that they are fully prepared for meeting these obligations and are aware of the information conveyed to the European tax authorities.
A detailed Alert summarizing the final wording of the Spanish MDR Regulations and with the precise reporting deadlines will follow once the Spanish MDR regulations are publicly available.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Abogados
Ernst & Young LLP (United States), Spanish Tax Desk, New York