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May 5, 2023
2023-0827

Netherlands updates guidance on mandatory disclosure regime

  • A new government decree updates guidance on applying Dutch legislation that implements Mandatory Disclosure Rules (MDR) for certain cross-border arrangements.
  • Determining whether there is a reportable cross-border arrangement raises complex technical and procedural issues.
  • Taxpayers and intermediaries with operations in the Netherlands should review the MDR obligations on a case-by-case basis.

Executive summary

The Dutch Government issued a decree on 28 April 2023 containing updated tax authority guidance on the application of Dutch legislation implementing European Union (EU) Directive 2018/822 on the mandatory disclosure and exchange of cross-border tax arrangements (referred to as DAC6 or the Directive).1

The newly issued, updated decree provides further clarity on the interpretation of the Dutch Mandatory Disclosure Rules (MDR) legislation and how the Dutch Government wants the reporting process to operate. The decree reconfirms that the Dutch MDR legislation is broadly aligned to the requirements of the Directive.2

Key highlights of the updated Dutch decree are summarized below.

Key highlights

  • The modification of a preexisting arrangement can result in a new reportable cross-border arrangement, even if the same hallmark applies to the arrangement.
  • A person who merely performs descriptive or compliance activities in relation to an existing arrangement is not an intermediary (regular or auxiliary) and is therefore not required to report in case this existing arrangement constitutes a reportable cross-border arrangement.
  • If a reportable cross-border arrangement is "made available" (for example, a report on the arrangement is made available to the client) but ultimately is not implemented, the deadline for reporting this arrangement nevertheless commences when the arrangement is made available. (i.e., even if not implemented, reporting should still take place).
  • With regard to the Main Benefit Test (MBT), the Dutch Government has confirmed that preventing a tax disadvantage also qualifies as a tax benefit for purposes of the MBT.

Next steps

Determining whether there is a reportable cross-border arrangement raises complex technical and procedural issues for both taxpayers and intermediaries. Taxpayers and intermediaries who have operations in the Netherlands should review the MDR obligations on a case-by-case basis. EY can assist in determining whether the updated guidance from the Dutch Government may impact an MDR position and result in possible reporting obligations.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young Belastingadviseurs LLP, Rotterdam

Ernst & Young Belastingadviseurs LLP, Amsterdam

Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor

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ENDNOTES

1 For background on MDR, see EY Global Tax Alert, EU publishes Directive on new mandatory transparency rules for intermediaries and taxpayers, dated 5 June 2018.

2 See EY Global Tax Alert Netherlands passes Act to implement Mandatory Disclosure Rules, dated 7 January 2020.

 

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