Linklaters Advokatbyrå AB’s position in relation to the Council Directive 2018/822/EU (”DAC 6”)
DAC 6 imposes a duty on advisers to notify, in certain situations, the relevant tax authorities of their client's cross-border arrangements. The Swedish legislation implementing DAC 6 entered into force on 1 July 2020.
In order for an arrangement to be reportable under DAC 6, the arrangement must be cross-border and meet at least one of the "hallmarks". The hallmarks are defined in the Swedish legislation and have a broad scope of application. Also an arrangement (for example a transaction) which is conducted without tax reasons can be subject to the reporting duty. The reporting duty relates to advisers who have participated in the transaction, irrespectively of whether they have provided tax advice or not.
Lawyers who are members of the Swedish Bar Association have a specifically regulated duty of confidentiality (legal privilege). The Swedish implementation of DAC 6 thus includes an exemption for lawyers' reporting obligation. In light of the above, Linklaters Advokatbyrå AB will not report any arrangements to the Swedish Tax Agency unless our client expressly instructs us to do so, waives legal privilege and releases us from our duty of confidentiality. In the event the client does not instruct us to report, then primarily the other advisers are responsible for ensuring that the arrangement is reported (and ultimately the client).
In those cases where we do not report an arrangement to the Swedish Tax Agency, the legislation states that we should inform the client’s other advisers that they should report. In the view of the Swedish Bar Association, however, we cannot do so without breaching our duty of confidentiality. This means that we will not inform other advisers of their obligation to report.
The legislation (in Swedish) is available here.