amendment to the Directive on Administrative Cooperation and the Common Reporting
Standard require the relevant banking information to be sent to all jurisdictions of tax
residence of the account holder.
Tax residence can be different from other definitions of residence for non-tax purposes. The
criteria for residence for tax purposes may vary considerably from jurisdiction to jurisdiction
and is usually linked to the number of days of physical presence in a jurisdiction. Some
jurisdictions also determine residency of an individual by reference to a variety of other
factors, such as citizenship, the ownership of a home or availability of accommodation,
family, and financial interests. As such, there are situations where the same individual may be
deemed a tax resident in more than one jurisdiction. Moreover, being deemed a tax resident in
a new jurisdiction does not extinguish other tax residence status in other countries.
However, the documentation issued under some of these schemes may make it very difficult
for financial institutions to identify correctly the legitimate places of tax residence. In some
cases the information on financial accounts may be sent to the wrong State and/or not sent to
the correct State. For example if information is sent only to the State operating a citizenship or
residence scheme (which often does not tax the income or require physical presence in the
country) and not to the genuine state of tax residence the income may escape taxation in the
correct State.
Schemes in countries which do not tax the income, or tax it at a very low rate, carry a greater
risk of account holders hiding evidence of the real state of residence and thereby evading tax.
In particular, third-country schemes carry a higher risk that Union citizens may use them to
deliberately evade taxation in their EU State of residence. EU financial institutions may be
less familiar with schemes in place outside the EU and although some schemes offered by EU
States also do not tax foreign income most target (and limit access to) non-EU residents.
The mandatory disclosure obligations for intermediaries adopted through an amendment to
the Directive on Administrative Cooperation in 201899 requires promoters of tax avoidance
schemes and service providers involved in their design or implementation to inform tax
authorities of any schemes they market or put in place. It includes specific provisions to target
schemes that may have the effect of circumventing the reporting obligations laid down by the
EU legislation on automatic exchange of financial account information.
In fact, the Directive includes a reporting obligation which targets schemes or arrangements
that undermine or exploit weaknesses in the due diligence procedures used by financial
institutions to report information to the tax authorities, such as the identification of the
jurisdiction of residence of the account holder. This is the case when the account holder
acquires citizenship or residence rights in a country other than that of effective residence.
Whenever such a scheme is marketed, or entered into, a reporting obligation befalls the
intermediary that is providing the service.
Pursuant to the 2018 amendment to the Directive on Administrative Cooperation, the schemes
entered into as of 25 June 2018 will be reported to the EU tax authorities, which will
exchange this information automatically with each other as of 2020, providing these
99
Council Directive (EU) 2018/822 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory
automatic exchange of information in the field of taxation in relation to reportable cross-border
arrangements, OJ L 139, 5.6.2018, p. 1.
17