Commission Implementing Regulation (EU) 2015/2378

of 15 December 2015

laying down detailed rules for implementing certain provisions of Council Directive 2011/16/EU on administrative cooperation in the field of taxation and repealing Implementing Regulation (EU) No 1156/2012

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC(1), and in particular Article 20(1), (3) and (4) and Article 21(1) thereof,

Whereas:

(1) Directive 2011/16/EU replaced Council Directive 77/799/EEC(2). A number of important adaptations of the rules concerning administrative cooperation in the field of taxation were made, in particular as regards the exchange of information between Member States with a view to enhancing the efficiency and the effectiveness of cross border exchange of information.

(2) Council Directive 2014/107/EU(3) amended Directive 2011/16/EU to introduce the mandatory automatic exchange of financial account information and the relating set of reporting and due diligence rules.

(3) In order to ensure the functioning of the new legal framework, Directive 2011/16/EU requires certain rules on the standard forms and computerised formats and the practical arrangements on the exchange of information between Member States to be adopted by means of implementing acts. Commission Implementing Regulation (EU) No 1156/2012(4) provides detailed rules as regards the standard forms and the computerised formats to be used in relation to Directive 2011/16/EU.

(4) Considering the changes to be made with a view of implementing Directive 2011/16/EU and in order to ease the readability of the implementing act, it is appropriate to repeal Implementing Regulation (EU) No 1156/2012 and to set out new consolidated rules.

(5) In order to facilitate the exchange of information, Directive 2011/16/EU requires that such exchange of information under that Directive should take place using standard forms except for mandatory automatic exchange of information.

(6) The standard forms to be used should contain a number of fields that are sufficiently diversified, so as to allow Member States to easily deal with all relevant cases, using the fields appropriate for each case.

(7) For the purposes of the mandatory automatic exchange of information, Directive 2011/16/EU requires the Commission to adopt both the practical arrangements and the computerised format. With a view to ensuring the appropriateness and usability of the information exchanged and the efficiency of the exchange itself, detailed rules should be laid down in this regard.

(8) The condition that the mandatory automatic exchange of information on the five categories of income and capital pursuant to Article 8(1) of Directive 2011/16/EU is subject to the availability of the information justifies that the corresponding computerised format is not specified beyond the level of the overall structure and classes of elements composing the computerised format, while the detailed elements exchanged under each of those classes remain subject to its availability in each Member State.

(9) Taking into account that the information exchanged under Article 8(3a) of Directive 2011/16/EU is to be collected by Reporting Financial Institutions pursuant to the applicable reporting and due diligence rules laid down in Annexes I and II to Directive 2011/16/EU and that the exchange is accordingly not subject to the condition of the availability of the information, the computerised format to be used should, in contrast, be expanded to encompass the lowest level of detail and include each element, together with its relevant attributes, if any.

(10) According to Directive 2011/16/EU, the information should, as far as possible, be provided by electronic means using the Common Communication Network (‘CCN’). Where necessary, the practical arrangements for the communication should be specified. Detailed rules should apply to the communication of reports, statements and other documents not consisting in the information exchanged itself but supporting it and, in the case of communication outside the CCN network and without prejudice to other bilaterally agreed arrangements, to the communication and identification of the information exchanged.

(11) Laws, regulations and administrative provisions in the Member States necessary to comply with Article 8(3a) of Directive 2011/16/EU regarding the mandatory automatic exchange of financial account information are to apply from 1 January 2016. This Regulation should therefore apply from the same date.

(12) The measures provided for in this Regulation are in accordance with the opinion of the Committee on Administrative Cooperation for Taxation,

HAS ADOPTED THIS REGULATION:

Article 1 U.K. Standard forms for exchanges on request, spontaneous exchanges, notifications and feedback

1. In regard to the forms to be used, ‘field’ means a location in a form where information to be exchanged pursuant to Directive 2011/16/EU may be recorded.

2. The form to be used for requests for information and for administrative enquiries pursuant to Article 5 of Directive 2011/16/EU and their replies, acknowledgments, requests for additional background information, inability or refusal pursuant to Article 7 of that Directive shall comply with Annex I to this Regulation.

3. The form to be used for spontaneous information and its acknowledgment pursuant to Articles 9 and 10 of Directive 2011/16/EU shall comply with Annex II to this Regulation.

4. The form to be used for requests for administrative notification pursuant to Article 13(1) and 13(2) of Directive 2011/16/EU and their responses pursuant to Article 13(3) of that Directive shall comply with Annex III to this Regulation.

5. The form to be used for feedback information pursuant to Article 14(1) of Directive 2011/16/EU shall comply with Annex IV to this Regulation.

Article 2 U.K. Computerised formats for the mandatory automatic exchange of information

1. The computerised format to be used for the mandatory automatic exchange of information pursuant to Article 8(1) of Directive 2011/16/EU shall comply with Annex V to this Regulation.

2. The computerised format to be used for the mandatory automatic exchange of information pursuant to Article 8(3a) of Directive 2011/16/EU shall comply with Annex VI to this Regulation.

[F1 Article 2a U.K. Standard forms, including linguistic arrangements, for the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements

1. In regard to the forms to be used, ‘ component ’ and ‘ field ’ mean a location in a form where information to be exchanged pursuant to Directive 2011/16/EU may be recorded.

2. The form to be used for the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements pursuant to Article 8a of Directive 2011/16/EU shall comply with Annex VII to this Regulation.

3. The key elements referred to in Article 20(5) of Directive 2011/16/EU are the components listed in points (b), (h) and (i) of Article 8a(6) of that Directive and those key elements shall also be sent in English.]

Textual Amendments

F1 Inserted by Commission Implementing Regulation (EU) 2016/1963 of 9 November 2016 amending Implementing Regulation (EU) 2015/2378 as regards standard forms and linguistic arrangements to be used in relation to Council Directives (EU) 2015/2376 and (EU) 2016/881.

[F1 Article 2b U.K. Linguistic arrangements for the mandatory automatic exchange of information on the country-by-country report

The key elements referred to in Article 20(6) of Directive 2011/16/EU are the information or explanation included in Table 3 of Section III of Annex III to that Directive and those key elements shall also be sent in English, except if another official language of the Union has been agreed to be used between the sending Member State and all the other Member States to which information is sent pursuant to Article 8aa(2) of Directive 2011/16/EU.]

Textual Amendments

F1 Inserted by Commission Implementing Regulation (EU) 2016/1963 of 9 November 2016 amending Implementing Regulation (EU) 2015/2378 as regards standard forms and linguistic arrangements to be used in relation to Council Directives (EU) 2015/2376 and (EU) 2016/881.

[F2 Article 2c U.K. Form and conditions for the communication of the yearly assessment

1. The form for the communication of the yearly assessment of the effectiveness of the automatic exchange of information and the practical results achieved pursuant to Article 23(3) of Directive 2011/16/EU is set out in Annex VIII to this Regulation.

2. Before 1 April each year, Member States shall communicate to the Commission by electronic means the yearly assessment using the form referred to in paragraph 1. The assessment shall cover the period of the previous calendar year.

Textual Amendments

F2 Inserted by Commission Implementing Regulation (EU) 2018/99 of 22 January 2018 amending Implementing Regulation (EU) 2015/2378 as regards the form and conditions of communication for the yearly assessment of the effectiveness of the automatic exchange of information and the list of statistical data to be provided by Member States for the purposes of evaluating of Council Directive 2011/16/EU.

Article 2d U.K. List of statistical data

1. The list of statistical data required for all forms of administrative cooperation, other than the mandatory automatic exchange of information, pursuant to Article 23(4) of Directive 2011/16/EU is set out in Annex IX to this Regulation.

The list of statistical data required for the mandatory automatic exchange of information pursuant to Article 8(1) of Directive 2011/16/EU is set out in Annex X to this Regulation.

The list of statistical data required for the mandatory automatic exchange of information pursuant to Article 8(3a) of Directive 2011/16/EU is set out in Annex XI to this Regulation.

The list of statistical data required for the mandatory automatic exchange of information pursuant to Article 8aa of Directive 2011/16/EU is set out in Annex XII to this Regulation.

2. Before 1 April each year, Member States shall communicate by electronic means, to the Commission the statistical data on all forms of administrative cooperation, other than the mandatory automatic exchange of information, in accordance with the list set out in Annex IX, in respect of the previous calendar year.

3. Before 1 November each year Member States shall communicate by electronic means to the Commission the statistical data on mandatory automatic exchange of information in accordance with the list set out in Annex X, Annex XI and Annex XII.]

Textual Amendments

F2 Inserted by Commission Implementing Regulation (EU) 2018/99 of 22 January 2018 amending Implementing Regulation (EU) 2015/2378 as regards the form and conditions of communication for the yearly assessment of the effectiveness of the automatic exchange of information and the list of statistical data to be provided by Member States for the purposes of evaluating of Council Directive 2011/16/EU.

[F3 Article 2e U.K. Standard forms, including linguistic arrangements, for the mandatory automatic exchange of information on reportable cross-border arrangements

1. In regard to the forms to be used, ‘ component ’ and ‘ field ’ mean a location in a form where information to be exchanged pursuant to Directive 2011/16/EU may be recorded.

2. The form to be used for the mandatory automatic exchange of information on reportable cross-border arrangements pursuant to Article 8ab of Directive 2011/16/EU shall comply with Annex XIII to this Regulation.

3. The key elements referred to in the third subparagraph of Article 20(5) of Directive 2011/16/EU shall be the components listed in points (b), (c) and (e) of Article 8ab(14) of that Directive and for these key elements, the linguistic arrangements shall be the same as those provided for in Article 2a(3) of this Regulation.]

Textual Amendments

F3 Inserted by Commission Implementing Regulation (EU) 2019/532 of 28 March 2019 amending Implementing Regulation (EU) 2015/2378 as regards the standard forms, including linguistic arrangements, for the mandatory automatic exchange of information on reportable cross-border arrangements.

Article 3 U.K. Practical arrangements regarding the use of the CCN network

1. The reports, statements and other documents referred to in the information communicated pursuant to Directive 2011/16/EU may be sent using means of communication other than the CCN network.

2. Where the information referred to in Directive 2011/16/EU is not exchanged by electronic means using the CCN network, and unless otherwise agreed bilaterally, the information shall be provided under cover of a letter describing the information communicated and duly signed by the competent authority communicating the information.

Article 4 U.K. Repeal

Implementing Regulation (EU) No 1156/2012 is repealed with effect from 1 January 2016.

References made to the repealed Implementing Regulation shall be construed as references to this Regulation.

Article 5 U.K. Entry into force and application

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 January 2016.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I U.K. Form referred to in Article 1(2)

The form for requests for information and for administrative enquiries pursuant to Article 5 of Directive 2011/16/EU and their replies, acknowledgments, requests for additional background information, inability or refusal pursuant to Article 7 of Directive 2011/16/EU contains the following fields(5):

• Legal basis

• Reference number

• Date

• Identity of the requesting and requested authorities

• Identity of the person under examination or investigation

• General case description and, if appropriate, specific background information likely to allow assessing the foreseeable relevance of the information requested to the administration and enforcement of the domestic laws of the Member States concerning the taxes referred to in Article 2 of Directive 2011/16/EU.

• Tax purpose for which the information is sought

• Period under investigation

• Name and address of any person believed to be in possession of the requested information

• Fulfilment of the legal requirement imposed by Article 16(1) of Directive 2011/16/EU

• Fulfilment of the legal requirement imposed by Article 17(1) of Directive 2011/16/EU

• Reasoned request for a specific administrative enquiry and reasons for refusal to undertake the requested specific administrative enquiry

• Acknowledgement of the request for information

• Request for additional background information

• Reasons for inability or refusal to provide information

• Reasons for a failure to respond by the relevant time limit and date by which the requested authority considers it might be able to respond.

ANNEX II U.K. Form referred to in Article 1(3)

The form for spontaneous information and its acknowledgment pursuant to Articles 9 and 10 respectively of Directive 2011/16/EU contains the following fields(6):

• Legal basis

• Reference number

• Date

• Identity of the sending and receiving authorities

• Identity of the person subject to the spontaneous exchange of information

• Period covered by the spontaneous exchange of information

• Fulfilment of the legal requirement imposed by Article 16(1) of Directive 2011/16/EU

• Acknowledgement of the spontaneous information.

ANNEX III U.K. Form referred to in Article 1(4)

The form for request for notification pursuant to Article 13(1) and 13(2) of Directive 2011/16/EU and their responses pursuant to Article 13(3) of that Directive contains the following fields(7):

• Legal basis

• Reference number

• Date

• Identity of the requesting and requested authorities

• Name and address of the addressee of the instrument or decision

• Other information which may facilitate the identification of the addressee

• Subject of the instrument or decision

• Response of the requested authority, in accordance with Article 13(3) of Directive 2011/16/EU, including the date of notification of the instrument or decision to the addressee.

ANNEX IV U.K. Form referred to in Article 1(5)

The form for feedback pursuant to Article 14(1) of Directive 2011/16/EU contains the following fields(8):

• Reference number

• Date

• Identity of the competent authority issuing the feedback

• General feedback on the information provided

• Results directly related to the information provided.

ANNEX V U.K. Computerised format referred to in Article 2(1)

The computerised formats for the mandatory automatic exchange of information pursuant to Article 8(1) of Directive 2011/16/EU comply with the following tree structure and contains the following classes of elements(9):

(a)

As regards the overall message:

(b)

As regards the body for communicating information on income from employment or director's fees:

(c)

As regards the body for communicating information on pensions:

(d)

As regards the body for communicating information on life insurance products:

(e)

As regards the body for communicating information on ownership of and income from immovable property:

(f)

As regards the body in case no information is to be communicated in relation to a specific category:

(g)

As regards the body for an acknowledgement of receipt of the information for a specific category:

ANNEX VI U.K. Computerised format referred to in Article 2(2)

The computerised format for the mandatory automatic exchange of information pursuant to Article 8(3a) of Directive 2011/16/EU complies with the following tree structure and contains the following elements and attributes(10):

(a)

As regards the overall message:

(b)

As regards the types common to FATCA and CRS used in the message under point (a) above:

(c)

As regards the common OECD types used in the message under point (a) above:

[F1 ANNEX VII U.K. Form referred to in Article 2a

The form for the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements pursuant to Article 8a of Directive 2011/16/EU contains, in addition to the components listed in Article 8a(6) of that Directive, the following field:

(a)

Ruling Reference.]

[F2 ANNEX VIII U.K. Form referred to in Article 2c

The form for the communication pursuant to Article 23(3) of Directive 2011/16/EU covers the following information:

• Identification of the Member State replying to the questionnaire

• Availability of information in the Member State

• Monitoring whether bilateral annual feedbacks as per Article 14(2) were sent

• Effectiveness of the automatic exchange of information:

  • Processing of information received and main overall technical (IT) issues encountered

  • Quality of information received, containing identification of recipients/parties; issues with the content of information received and related suggestions

  • Compliance use and effectiveness, containing usefulness of information in principle; actual and future use of information; use of information by tax area; administrative cooperation encouraged by the use of the information received

  • Practical results achieved, containing total outcome (including special projects); specific outcome from special projects; administrative and other relevant costs for automatic exchange of information (AEOI) development and implementation; administrative costs for recurring AEOI operations; other relevant costs for tax compliance operations; positive and negative experiences; main aspects generating litigation and court proceedings

  • Rate of success as regards the obligation to communicate the country-by-country reports to the Member States concerned (Number of country-by-country reports received from tax authorities of other Member States/Number of country-by-country reports due to be received from tax authorities of other Member States)

  • Rate of compliance of Reporting Entities as regards the obligation to provide the country-by-country reports (Number of country-by-country reports received/Number of country-by-country reports due to be reported)

  • List of any jurisdictions where Ultimate Parent Entities of Union-based Reporting Entities are resident, but full country-by-country reports have not been filed or exchanged.

ANNEX IX U.K. List referred to in Article 2d

The statistical data required for the forms of administrative cooperation other than the mandatory automatic exchange of information referred to in Article 23(4) of Directive 2011/16/EU covers the following information:

• Identification of the Member State

• Year

• Part A: Statistics per Member State on exchange of information

  • on exchange of information on request (Article 5, 6 7 of Directive 2011/16/EU)

    • Number of requests sent

    • Number of replies received

    • Number of full replies received within six months

    • Number of replies for which (part of or the whole) information was received within two months

    • Number of requests received

    • Number of replies sent

    • Number of refusals on the ground of Article 17 of Directive 2011/16/EU

  • on spontaneous exchange of information (Article 9 and 10 of Directive 2011/16/EU)

    • Number of spontaneous exchanges sent

    • Number of spontaneous exchanges received

    • Number of cross-border rulings sent

    • Number of cross-border rulings received

    • Number of unilateral advance pricing arrangements sent

    • Number of unilateral advance pricing arrangements received

• Part B: Statistics on other forms of administrative cooperation

  • on presence in administrative offices and participation in administrative enquiries (Article 11 of Directive 2011/16/EU)

    • Number of incoming presences in administrative offices and participation in administrative enquiries

  • on simultaneous controls (Article 12 of Directive 2011/16/EU)

    • Number of simultaneous controls which the Member State has initiated

    • Number of simultaneous controls in which the Member State has participated

  • on requests for notification (Article 13 of Directive 2011/16/EU)

    • Number of requests for notification sent

    • Number of requests for notification received

  • on feedback (Article 14 of Directive 2011/16/EU)

    • Number of requests for feedback sent

    • Number of feedback received

    • Number of requests for feedback received

    • Number of feedback sent

• Part C: Statistics on estimated additional revenue or increase in assessed tax due to administrative cooperation. The information under this part is optional

  • From exchange of information on request

  • From spontaneous exchange of information

  • As a result of simultaneous control

  • Overall figure and number of cases.

ANNEX X U.K. List referred to in Article 2d

The statistical data required for the mandatory automatic exchange of information pursuant to Article 23(4) of Directive 2011/16/EU on the categories of income and capital referred to in Article 8(1) of that Directive covers the following information:

• For all categories of income and capital referred to in Article 8(1) of Directive 2011/16/EU: statistics on message and taxpayer

• In the case of income from employment and director's fees: statistics on message and recipient, message and payer, recipient and relationship, payer and relationship, recipient and income

• In the case of pensions: statistics on message and recipient, message and payer, recipient, payer, scheme, income

• In the case of life insurance products: statistics on message and policy, policy overall, event

• In the case of ownership of and income from immovable property: statistics on message and party, party overall, property quantity and value, transaction quantity and value, loan event quantity and value, right income quantity and value

• In the case of status messages: statistics on status message, status message error

• In the case of zero data messages: statistics on zero data message.

ANNEX XI U.K. List referred to in Article 2d

The statistical data required for the mandatory automatic exchange of information in accordance with Article 8(3a) of Directive 2011/16/EU, pursuant to Article 23(4) of that Directive covers the following information:

• Per message, statistics on originating country and destination country, total number of records, total payment amounts

• Per originating country, statistics on total number of reporting financial institutions, total payment amounts

• Per unique account, statistics on account holder quantity, payment category, amount per payment category

• Per account, statistics on account holder type, account holder taxpayer identification number or functional equivalent, account holder residence country, natural person as account holder, closed account, dormant account

• Per account holder, statistics on controlling person type, controlling person taxpayer identification number or functional equivalent, controlling person residence country, natural person as controlling person.

ANNEX XII U.K. List referred to in Article 2d

The statistical data required for the mandatory automatic exchange of information in accordance with Article 8aa of Directive 2011/16/EU, pursuant to Article 23(4) of that Directive covers the following information:

• Number of country-by-country reports received from Reporting Entities

• Number of country-by-country reports due to be reported by Reporting Entities but not received or only partial report provided, breakdown per jurisdictions of the Ultimate Parent Entities

• Number of country-by-country reports received from each other Member State.

• Number of country-by-country reports due but not received from each other Member State.

• Number of country-by-country reports sent to each other Member State.]

[F3 ANNEX XIII U.K. Form referred to in Article 2e

The form for the mandatory automatic exchange of information on reportable cross-border arrangements pursuant to Article 8ab of Directive 2011/16/EU contains, in addition to the components listed in Article 8ab(14) of that Directive, the following field:

(a)

Reference Number of the reportable cross-border arrangement(s).]

(1)

OJ L 64, 11.3.2011, p. 1.

(2)

Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ L 336, 27.12.1977, p. 15).

(3)

Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (OJ L 359, 16.12.2014, p. 1).

(4)

Commission Implementing Regulation (EU) No 1156/2012 of 6 December 2012 laying down detailed rules for implementing certain provisions of Council Directive 2011/16/EU on administrative cooperation in the field of taxation (OJ L 335, 7.12.2012, p. 42).

(5)

However, only the fields actually filled in a given case need to appear in the form used in that case.

(6)

However, only the fields actually filled in a given case need to appear in the form used in that case.

(7)

However, only the fields actually filled in a given case need to appear in the form used in that case.

(8)

However, only the fields actually filled in a given case need to appear in the form used in that case.

(9)

However, only the classes of elements actually available and applicable in a given case need to appear in the computerised format used in that case.

(10)

However, only the elements and attributes actually applicable in a given case further to the performance of the reporting and due diligence rules included in Annexes I and II to Directive 2011/16/EU need to appear in the computerised format used in that case.