30 December 2020
The Chamber wishes to bring to the attention of all lawyers that an EU Directive (Council Directive 2018/822/EU) has been transposed into Maltese law that imposes certain reporting obligations on lawyers, among other professionals and persons, referred to as intermediaries under the Directive. Such Directive, commonly referred to as DAC 6, imposes mandatory reporting of cross-border arrangements which have happened on or after 25 June 2018 affecting at least one EU Member State that fall within one of a number of “hallmarks”: broad categories setting out particular characteristics identified as potentially indicative of aggressive tax planning. The reporting obligations fall on “intermediaries” or, in some circumstances, the taxpayer itself. A description of the applicable hallmarks is detailed in the Directive. The Directive was transposed into Maltese law pursuant to Legal Notice 342 of 2019.
It is pertinent to note that given that our profession is referred to in Article 3 of the Maltese Professional Secrecy Act, lawyers are entitled to avail themselves of a waiver from submitting to the Commissioner for Revenue information on a reportable cross-border arrangement where the reporting of such information would constitute an offence under article 257 of the Maltese Criminal Code.
In such circumstances, the obligation to report may shift to another intermediary, or if there is no such other intermediary, to the relevant taxpayer. However, in such case, lawyers are obliged to notify the other intermediary and/or relevant taxpayer of their reporting obligations. Intermediaries have until the 12th January 2021 to notify any other intermediary or the relevant taxpayer that they are waiving their obligation to report under DAC 6.
Where a lawyer waives such reporting obligation, such lawyer is also obliged to provide an annual update to the Maltese Commissioner for Revenue, consisting of a list of the reportable cross-border arrangements where the reporting obligation has been waived on to another intermediary or the relevant taxpayer. The deadline for submission of this particular filing has yet to be announced.