DAC6: declaring a cross-border arrangement (models 234, 235 and 236)

An arrangement is any agreement, legal transaction, scheme or operation. It can consist of several phases and several linked arrangements. It is considered cross-border when it affects more than one European Union Member State, or a Member State and a third country, and any of these situations also occurs: not all participants are tax residents in the same jurisdiction, one is resident in several at the same time, one operates in another jurisdiction through a permanent establishment and the arrangement is part of that activity, one carries out activity in another jurisdiction without residing there or having a permanent establishment, or the arrangement may have consequences on the automatic exchange of information or on the identification of beneficial ownership.

The fact that the operation is cross-border is not enough. You only have to declare it if any of the hallmarks also apply, which are the characteristics that the European rule considers an indication of a potential risk of tax avoidance. Many perfectly ordinary international operations do not have any and are not declared.

Cross-border agreements, schemes or operations based on tax regimes that have been communicated and expressly authorised by a European Commission decision are excluded. Payments derived from the formalisation of a reportable arrangement that do not have their own substance are also excluded as an independent arrangement: they are not declared separately, they are declared as part of the content of that arrangement.

There is no billing, workforce or amount threshold. A small company with intragroup financing or a cross-border restructuring can be obliged in exactly the same way as a multinational group.

The general rule is that the intermediary declares. An intermediary is anyone who designs, markets, organises, makes available for implementation or manages the implementation of the arrangement. It is also anyone who provides help, assistance or advice on any of those activities knowing, or when it can reasonably be expected that they know, that the arrangement is reportable.

There must also be a connection point with the European Union: being a tax resident in a Member State, providing the services from a permanent establishment located in one, being incorporated or governed by the laws of one, or being registered with a professional association in one.

The intermediary declares before the Spanish Administration when, in this order, they are a tax resident in Spain, they provide the intermediation services from a permanent establishment located in Spain, they were incorporated in Spain or are governed by Spanish law, or they are registered with a Spanish professional association related to legal, tax or advisory services.

The obligation passes to your company, as the relevant taxpayer, in two cases: when there is no intermediary obliged to declare, and when there is one but they are exempt because transferring the information would breach their duty of professional secrecy and they notify you of this. The relevant taxpayer is the one to whom the arrangement has been made available for implementation, or the one who is preparing to implement it or has already implemented its first phase.

It is worth clearing up a frequent misunderstanding: you do not need to know the arrangement completely to be an intermediary. Anyone who provides help, assistance or advice knowing, or when it can reasonably be expected that they know, that the arrangement is reportable has that status even if their knowledge is partial, and they declare the information that is in their power, possession or control. The fact that the adviser only knows part of the scheme does not in itself transfer the obligation to your company: it only declares if there is no obliged intermediary or if the existing one is protected by professional secrecy and notifies you.

If there are several relevant taxpayers, the one who agreed the arrangement with the intermediary declares and, failing that, the one who manages its implementation. The others are exempt if they prove that the declaration has already been submitted.

If your company pays taxes to a regional tax authority (Basque Country or Navarre), the obligation still exists, but it is governed by the corresponding regional regulations and is submitted to that authority, with its own model. The fact that the origin is European does not make it an AEAT declaration.

A hallmark is a characteristic or feature of the arrangement that presents an indication of a potential risk of tax avoidance. They are listed in Annex IV of the European rule and grouped into five categories, from A to E.

Categories A and B, and three specific cases of C, only oblige you to declare if the main benefit test is also met. It is met when the main benefit, or one of the main benefits, that a person can reasonably expect from the arrangement, taking into account all relevant facts and circumstances, is obtaining a tax advantage.

The AEAT defines a tax advantage broadly: any reduction of the tax base or quota in terms of tax debt, the deferral of its accrual, totally or partially avoiding the taxable event, and also the generation of tax bases, quotas, deductions or any tax credit capable of being offset or deducted in the future. When associated enterprises participate in the arrangement, the saving is measured across all the associated entities, regardless of the jurisdiction in which they pay taxes.

Categories D (automatic exchange of information and beneficial ownership) and E (transfer pricing) oblige you to declare on their own, without the need for any tax advantage to exist. This is the point that surprises companies the most: an intragroup transfer of functions or a transfer of intangibles can be reportable even if they do not pursue any tax advantage.

When transposing the rule, Spain specified some concepts. The rate for zero or almost zero companies is understood when the recipient's jurisdiction applies a nominal rate of less than 1%. And in transfer pricing, the hallmark does not apply when the values were set in advance pricing agreements that are subject to automatic exchange of information.

There are three hallmarks in category C that, on their own, do not prove the main benefit test: those relating to deductible cross-border payments between associated enterprises whose recipient is taxed at a zero or almost zero rate, or whose payment is totally exempt, or benefits from a preferential tax regime. The fact that one of them applies does not allow this test to be considered met automatically: it must be proven with the rest of the facts and circumstances of the arrangement. The rule does not require, however, that they be accompanied by another hallmark.

Model 234 is submitted within 30 calendar days. The obligation arises with the first of these three events: the arrangement is made available for implementation, it is ready for implementation, or its first step of implementation has been made. The period is always counted from the day following the one on which that event occurs, also when the one that arrives first is the first step of implementation.

It is considered to be made available when the intermediary transmits the provision of services and the taxpayer accepts it definitively. It can be proven by any means admitted in law, and in practice with the order form and its acceptance, with reports or with invoices. The arrangement is ready for implementation when, in the case of a substantially standardised structure that required a relevant modification, that modification has already been made and made available. And there is a first step of implementation when the arrangement is put into practice generating some legal or economic effect.

For an intermediary who merely provided help, assistance or advice, the period starts the day after they provided them. And if your company declares because it has received the communication from an intermediary exempted by professional secrecy, the 30 calendar days are counted from the day following the receipt of that communication. The fact that the intermediary was late in sending it beyond the five days they have to do so does not shorten that period: your company still has 30 days from when it receives it.

Model 235 updates marketable arrangements, that is, those designed, marketed, ready for implementation or made available without the need for substantial customisation. It is submitted in the calendar month following the end of the calendar quarter in which new information that must be communicated has been obtained. It can only be submitted by the same declarant who submitted the original model 234, and it is understood that there is an update when the arrangement has been contracted by new relevant taxpayers. If there has been no variation, nothing is submitted.

Model 236 is submitted by your company, not the intermediary, and declares the use in Spain of an arrangement that should have been declared previously, before the AEAT or before another European tax administration. It is submitted in the last quarter of the calendar year following the one in which the use occurred, that is, from October 1 to December 31. It is submitted even when the arrangement was not declared at the time, having been obliged to do so.

All three models are submitted exclusively electronically, at the AEAT electronic headquarters, via web form, via web service or by sending the XML file defined for the web service. If the declarant is a company, identification is done with an electronic certificate, because legal entities are obliged to interact electronically with the Administration in this way; Cl@ve (the Spanish digital identity system) PIN is only available for individuals.

There is also a fourth model, 239, for common reporting standard avoidance arrangements and opaque offshore structures, within the scope of the Multilateral Competent Authority Agreement. According to the AEAT itself, its submission will be available when that Agreement takes effect with respect to any jurisdiction.

Alongside the declarations to the AEAT, there are communications between private parties that are not sent to the Tax Agency nor done through its website. They are sent directly to the other participants, and failure to comply has its own penalty.

The first is that of the intermediary exempted by professional secrecy. They must communicate this circumstance to their client within five days counted from the day following the birth of the reporting obligation. Since May 26, 2023, the date of entry into force of Ley 13/2023, this communication is directed only to those who are their clients, whether they are other intermediaries or the relevant taxpayers, and not to the rest of the intermediaries involved in the arrangement without being their clients. The change reflects the judgment of the Court of Justice of the European Union of December 8, 2022, and the communication models were adapted later, by the Resolución de 8 de mayo de 2024. If you receive this communication, the obligation to declare passes to your company, and your 30 days count from the day after receiving it, whether it arrives within or outside those five days.

The second is that of the one who has already declared. The intermediary who has submitted model 234 or 235 must communicate it to the rest of the intermediaries involved in the arrangement within five days counted from the day following the submission. This communication has the value of reliable proof and exempts the others from submitting.

The third is the equivalent between relevant taxpayers: the one who has submitted model 234 communicates it to the others within the same period of five days, and they are exempt if they prove that the declaration was already submitted.

There is a fourth, more recent obligation that is often overlooked. Every intermediary obliged to supply the information must communicate to each relevant taxpayer who is an individual all the information that will be provided to the tax administration and that will be transferred to other States. They must do so sufficiently in advance so that this person can exercise their right to the protection of their personal data, and in any case before the information is supplied. There is no approved model: any document whose content fulfils that purpose is valid.

For the first three there are approved official models, but other forms adjusted to the same content are also valid and, in the last two, the simple delivery of a copy of the submitted declaration. If your company is exempted, keep reliable proof that the declaration was submitted: without it, the exemption will not hold up in an inspection.

Failing to submit model 234, 235 or 236 on time is a serious tax infringement. The penalty is a fixed monetary fine of €2,000 for each data item or set of data referring to the same arrangement that should have been included in the declaration, with a minimum of €4,000.

The maximum depends on who breaches: if the offender is the intermediary, the amount of the fees received or to be received for that arrangement; if it is your company, the value of the tax effect derived from the arrangement. That maximum limit does not apply when it is less than €4,000. And when the arrangement has no value and the offender is the relevant taxpayer, the ceiling is calculated on the intermediary's fees. It is the offender who has to prove the concurrence and magnitude of those limits.

Submitting the models incompletely, inaccurately or with false data is penalised in the same way: serious infringement, €2,000 for each omitted, inaccurate or false data item, with the same minimum of €4,000 and the same maximums.

Submitting them by means other than electronic, computer and telematics when there is an obligation to do so by that route is also a serious infringement, with a fine of €250 per data item or set of data, minimum €750 and maximum €1,500.

There is a clear incentive to regularise: the penalty and its minimum and maximum limits are reduced by half when the information is submitted out of time without a prior requirement from the tax administration. And if the declaration was submitted on time but incomplete, and is then corrected out of time and without a requirement, the first is not penalised as incomplete: what is declared out of time is penalised as a late submission.

Communications between private parties have their own regime. Failing to make them on time, or omitting data or including false, incomplete or inaccurate data, is a minor infringement with a fixed fine of €600. There is a severe exception: if the lack of communication from the exempted intermediary prevents your company from submitting model 234, the infringement becomes serious and is penalised as the failure to submit that declaration.

The general graduation criteria and the reductions provided for in the tax penalty regulations apply to all these penalties. And they are compatible with the rest of the penalty regime, except with the two general infringements for not submitting on time and for submitting informative declarations incorrectly, which do not accumulate.

No. DAC6 is an information obligation, not a qualification. The declaration does not mean that your company recognises that the arrangement is abusive, nor does it prevent you from later defending the taxation you applied. On the contrary: what generates risk is not declaring, because the penalty is imposed for formal non-compliance regardless of whether the operation is impeccable.

It is also worth being clear about the opposite. The fact that the AEAT receives the declaration and does not react does not mean that it validates the arrangement. Models 234, 235 and 236 do not create any administrative criterion in your favour.

If what worries you is precisely the criterion, the way to establish it before self-assessing is a written tax consultation to the Directorate General of Taxes, which binds the AEAT. Submitting it does not carry any tasa (official fee) or administrative cost, and the Administration has six months to answer. Managora drafts and submits it for you.

And model 234 does not replace anything. You still have to submit model 232 if your company exceeds the related-party transactions thresholds or carries out operations with tax havens, and Corporate Income Tax model 200 within its own deadline. They are different obligations, with different calendars, which the AEAT cross-checks against each other. You can see the details and the updated amount of each one in its file.

Managora reviews your cross-border operations, determines if any hallmark applies, establishes who is obliged to declare and before which Administration, prepares models 234, 235 and 236 and submits them for you at the AEAT electronic headquarters, with the communications between participants within their five days. Write to us with the operation you have in hand and we will tell you what situation you are in before the 30 days run out.