New legal developments in the tax framework in Spain


Last week the Tax Legislative activity in Spain was “intense”.

Please find below the legal developments recently entered in force.

 

  1. NEW TAX RETURNS 770 AND 771 VOLUNTARY REGULARIZATION OF TAX DEBTS

On June 16, 2020, the ministerial order HAC / 530/2020, of June 3, was published in the BOE, which develops the tenth final provision of Law 34/2015, of September 21, on the partial modification of the General Tax Law 58/2003, of December 17, approves the 770 models, “Self-assessment of interest on late payment and surcharges for the voluntary regularization provided for in article 252 of the General Tax Law” and 771 “Self-assessment of tax quotas terms and tax periods without a model available at the official web site of the AEAT for the voluntary regularization provided for in article 252 of the General Tax Law »

 

a) A little bit of history

Let´s remember that during December 2012, (Spain being in the midst of the economic and social crisis, at serious risk of being intervened by the EU authorities) Organic Law 7/2012, of December 27, was passed, which amended the Criminal Law, giving a new wording to sections 1 and 4 of article 305 in the matter of voluntary regularization of the tax situation of those taxpayers who may have incurred in the conduct typified in those crimes against the Public Treasury and against Security Social (articles 305 and 305 bis).

Consequently, later in 2015, Law 34/2015, of September 21, partially amended The General Tax Law 58/2003, of December 17, introducing a new article 252.

 

b) Legal Framework: Subjective and objective aspects

Law 58/2003, of December 17, General Tax (hereinafter GTL) in its TITLE VI regulates the Actions and procedures for the application of taxes in cases of crime against the Public Treasury. The articles covered in the aforementioned TITLE VI range from 250 to 259.

Article 252 first paragraph regulates tax and criminal consequences derived from a Voluntary Regularization, that is, the one in which the taxpayer has regularized its tax situation by fully acknowledging and paying the tax debt before had been notified of the initiation of verification or investigation actions aimed at determining the tax debt subject to regularization or, in the event that such actions had not occurred, before the Public Prosecutor, the State Attorney or the procedural representative of the Autonomous, provincial or local administration in question, file a complaint or complaint against it, or before the Prosecutor’s Office or the Investigating Judge carry out actions that allow them to have formal knowledge of the initiation of proceedings.

Likewise, the 2nd paragraph determines in detail what the tax debt is, understood under provisions of article 58 GTL (amount to be paid that results from the main tax obligation, added by interest, surcharges for extemporaneous declaration, etc. with the exception of sanctions that may be imposed), the taxpayer must proceed to the Self-assessment and simultaneous payment of both the instalment and the interest and surcharges legally accrued on the date of admission. However, when the voluntarily regularized taxes are not required by the self-assessment procedure, the taxpayer must submit the corresponding tax return, proceeding to the payment of the entire tax debt settled by the Administration within the period established for payment in the regulations. tax

According to the preamble of the HAC Order 530/2020, of June 3, “to implement this voluntary regularization, article 252 of the General Tax Law distinguishes two types of taxes, in coherence with the legal configuration that our Tax Legal System carries out regarding recognition, settlement and payment thereof:

    • Taxes that must be fulfil to self-assessment by the taxpayers, such as, among others, the Personal Income Tax, Non-Resident Income Tax, Corporation Tax, Value Added Tax or special manufacturing taxes; and
    • Taxes that are required by means of the presentation of declarations by the taxpayers and subsequent liquidation practiced by the Tax Administration itself, such as, among others, the taxes that make up the customs debt on import… ”.

In this regards, the aforementioned Ministerial Order contemplates the approval of New Models 770 and 771:

    • Model 770: self-assessment and payment of default interest and legally accrued surcharges for voluntary regularization, exclusively in relation to those taxes whose requirement is subject to the self-assessment procedure and within the following terms:
      • when it refers to a tax concept and exercise or taxable event (i.e. personal income tax) whose self-assessment and income model is available at the Electronic Office of the Tax Agency (https://www.agenciatributaria.gob.es).
      • In the case of a tax concept with quarterly or monthly settlement periods (i.e. VAT), as many return forms will be presented as there are settlement periods intended to be regularized with respect to the corresponding year.
    • Model 771: self-assessment and payment of fees corresponding to tax concepts and exercises, the presentation model of which is not available at the Electronic Office of the Tax Agency (https://www.agenciatributaria.gob.es) at that time.

 

c) On-line submission only

Both models will be submitted electronically via Internet.

 

d) Complementary documentation

The taxpayer, may provide additional ocumentation in support of the data of the different items that are contained, both in form 770 and in form 771.

 

e) Entry into force

This order will enter into force ten days after its publication in the “Official State Gazette”, that is, next Tuesday, June 30th, 2020.

 

2. POSSIBILITY OF PERFORMING ACTIONS IN TAX PROCEDURES THROUGH VIDEO CONFERENCES

According to Royal Decree-Law 22/2020, of June 16, which regulates the creation of the COVID-19 Fund and establishes the rules regarding its distribution and release, published in the BOE on June 17, 2020, a new regulation of future actions in the procedures for the application of taxes through videoconferences is established in the first final provision. The purpose is clear, and corresponds to allow the exercise of rights and compliance with tax obligations of taxpayers, in a context of new normality, generated by the effects of the health crisis of COVID-19.

Therefore, two new modifications to the LGT are introduced, namely:

a) a new section 9, in article 99 Development of tax actions and procedures, with the following wording:

“9. The actions of the Administration and the taxpayers in the procedures of application of the taxes may be carried out through digital systems that, through videoconference or another similar system, allow bidirectional and simultaneous communication of image and sound, visual interaction, auditory and verbal between the taxpayers and the acting body, and guarantee the safe transmission and reception of documents that, where appropriate, reflect the result of the actions carried out, ensuring their authorship, authenticity and integrity. The use of these systems will occur when determined by the Tax Administration and will require the agreement of the taxpayer in relation to their use and the date and time of their development… ”.

b) a new letter e), in section 1 of article 151 Place of the inspections, with the following wording:

“e) In the places indicated in the previous letters or in another place, when said actions are carried out through the digital systems provided for in article 99.9 of this Law. The use of said systems will require the compliance of the taxpayer …”.

 

As we see, in all cases, the prior consent of the subject of these tax actions and procedures will be required.

Remember that article 123 of the GTL lists the tax procedures by way of example, including: a) The refund procedure initiated through self-assessment, request or communication of data. b) The procedure initiated by declaration, c) The data verification procedure, d) The value verification procedure and e) The limited verification procedure; also granting the possibility of creating other procedures by regulation.

In this same sense, article 141 and following of the LGT regulate the Inspection procedure.

Therefore, with the entry into force of the aforementioned Royal Decree-Law 22/2020, on June 17, 2020, in some or some stages of the above mentioned procedures they may be developed (always with the prior consent of the taxpayer), through the use of tools such as videoconferences that guarantee visual, auditory and verbal interaction, as well as secure transmission / reception of documentation with the Spanish Tax Authority.

 

3. EXTENSION OF THE VALIDITY OF USE OF EXPIRED ELECTRONIC CERTIFICATES

As reported from the Spanish Tax Authority website, in relation to the measure adopted, in accordance with the provisions of Royal Decree 463/2020, of March 14, to allow the use of expired electronic certificates due to the situation caused by COVID -19, and with the aim of giving time to regularize electronic certificates in the current situation, the use of these certificates will be allowed in the Tax Agency Electronic Office until July 31, 2020.

The Spanish Tax Authority itself stresses that it is possible that your usual browser does not allow the use of the expired certificate, in which case, the system date must be modified to a date prior to expiration so that it can be used.