Sweden’s implementation of DAC 6 – A proportionate measure to prevent tax avoidance and evasion in the form of aggressive tax planning

Sammanfattning: After the financial crisis in 2008, governments became more aware about how multinational enterprises exploited gaps in the architecture of the international tax system in the globalized world to artificially shift profits to places where there was little or no taxation. It is estimated that base erosion and profit shifting cost countries 100-240 billion USD in lost revenue annually which is equal to 4-10% of the global corporate income tax. There are over 135 countries collaborating on the implementation of 15 measures to tackle tax avoidance. Action 12 of OECD/G20 inclusive framework on BEPS provides recommendation of rules which are designed to require intermediaries and, in some cases, relevant taxpayer to disclose information on potentially aggressive tax planning arrangements. The European Union has further adopted the amending directive DAC 6, which is based on Action 12. The main purpose with DAC 6 is to prevent tax avoidance and evasion in the form of aggressive tax planning. The implementation of the EU directive means that member states of EU are obliged to implement mandatory disclosure rules for cross-border arrangements. The DAC 6 have been criticized for broad and vague formulation of central words which creates uncertainty for the application. Further, broadly worked hallmarks and wide information required to be filed creates danger for disproportionality. The paper intends to investigate whether the Swedish implementation of the directive is a proportionate measure to achieve its goal. In order to do so, the DAC 6 is first described, since the Swedish implementation is based on the directive. The Swedish government’s interpretation is further explained as well as the expected benefit and costs of the rules. The principle of proportionality is then described, both its status in law, and how the CJEU have approached the principle. The result of the essay is that levying substantial administrative burden on intermediaries and relevant taxpayers for legitimate but undesirable arrangements, is not likely proportionate.