Article: DAC6: Some (potential) Incompatibility Profiles with Article 6 ATAD

Abstract

From a comparative analysis of Article 6 Anti Tax Avoidance Directive (ATAD) and the Directive Administrative Cooperation (DAC)6, it would seem that the disclosure requirements of the latter are in accordance with the concept of tax avoidance (or ‘abuse of rights’) introduced by the general clause of Article 6 ATAD. Nevertheless, notwithstanding the consistency of the DAC6 with the general anti-abuse clause of the ATAD, at least two types of uncertainties appear to arise. The first concerns the consistency of the directive mentioned previously with the ultimate purpose of the anti-avoidance regulations (which is to exclusively prevent and counteract avoidance conduct). The second involves the compatibility of the disclosure requirements imposed by the directive with the general anti-abuse clauses currently in force in some European legal systems (for all, reference will be made to the Italian experience). The comparison outlined above would appear to demonstrate that the reporting obligations established by the DAC6 are overly broad and that they do not adequately take account of the ‘non-tax reasons’ that may justify the cross-border mechanism even for a transaction from which tax advantages may arise at the same time. ATAD, General Anti Avoidance Rule (GAAR), DAC-6, exchange of information, tax avoidance, Article 10-bis