The law of 20 December 2019 (NL / FR) implementing the DAC6 Directive (2018/822/EU) set the maximum penalties for incomplete, late or absence of reporting. However, it authorized the King to determine the progressive scale of these fines and to regulate their application.
The Constitutional Court advised to include a leniency procedure in case there would be attenuating circumstances (such as a spontaneous rectification of an inaccurate notification). However, the Royal Decree explicitly excluded such leniency procedure, seemingly in order to respect the principle of equality and to avoid a discretionary reduction of administrative sanctions, and referred to other administrative procedures to claim reduction or waiver of penalties (i.e. through the Tax Mediation Service or on the basis of the Regent Decree).
The Constitutional Court doubts, however, whether these procedures of last resort (as they are indeed only accessible after all administrative or judicial appeals are exhausted) would stand the test of constitutionality, given that the leniency should be granted via the procedure deciding on the sanctions. In addition, it is questionable whether even a judge – if caught to appeal against the administrative fines – would be able to reduce or waive the penalties below the statutory minimum amount, if and when attenuating circumstances would justify this. This is obviously a missed opportunity to simplify and reduce the procedural expenses for taxpayers and intermediaries. On the contrary, the Constitutional Court seems to suggest challenging penalties could even become a constitutional debate.
Finally, note that the implementing law of 20 December 2019 waived any sanctions on the late or incomplete reports if and to the extent the arrangements were reported before 31 December 2020. With the above-mentioned reporting deadlines, this waiver will no longer apply if intermediaries or taxpayers wish to make use of such extended deadlines. Particularly in cases where one is in doubt of the completeness of the filing, it may still be advisable to report arrangements before 31 December 2020.