Law 11/2021, of July 9, on measures to prevent and combat tax fraud, introduced a new obligation for computer or electronic systems that support accounting, invoicing or business management processes to comply with certain requirements that guarantee the integrity, conservation, accessibility, legibility, traceability and unalterability of the records, requirements whose technical specification may be subject to regulatory development, including the possibility of subjecting such computer systems to certification.

An important penalty regime was also specifically established.

For the time being, this new obligation to adapt accounting, invoicing or business management software has only been introduced at the legal frame in Article 29.2.j) and in the new Article 201 bis of the General Tax Law.

In this sense, Article 29.2.j) of the General Tax Law establishes:

    1. who the obligors are, namely: producers, marketers and users.
    2. that the computer or electronic systems and programs that must necessarily guarantee the required standards cover: accounting, invoicing or management processes.
    3. all the referred systems and programs must be used by those who carry out an economic activity.
    4. The regulations may establish technical specifications that such systems and programs must meet, as well as the obligation for them to be duly certified and use standard formats for their readability.

Regarding the penalty system, Article 201 bis of the General Tax Law establishes that the infringements foreseen will be serious.

The infringing circumstances foreseen are summarized in those in which the manufacture, production and commercialization of computer or electronic systems and programs allow:

    • to keep different accounting records,
    • not reflecting the recording of transactions carried out,
    • to record transactions different from the entries made,
    • alter transactions already recorded.

Likewise, it is also established as infringing circumstances that the computer programs or systems:

    • do not guarantee the integrity, conservation, accessibility, readability, legibility, traceability and unalterability of the records, as well as their readability by the competent bodies of the Tax Administration,
    • the systems manufactured, produced or marketed are not certified, being obliged to do so by regulatory provision.

Finally, the fines for the infringements mentioned in the preceding paragraph range from 1,000 euros for each system or program marketed without being certified, rising to 50,000 euros for each fiscal year, in the case of the possession of computer or electronic systems or programs that are not duly certified, having to be certified by regulatory provision, or the certified devices have been altered or modified; and increasing to 150,000 euros, for each fiscal year in which sales have taken place and for each different type of computer or electronic system or program that is the object of the infringement.

As we can see, the fines that can be incurred by users (from a self-employed person who uses a spreadsheet to do his own accounting, to large companies that use well-known programs), as well as by those engaged in the production and marketing of these products, are very substantial.

For the time being, the regulatory development of Article 29.2.j) of the General Tax Law is still pending approval. Therefore, it will be necessary to wait for the referred regulatory development to know in detail the requirements to be met by the mentioned software and computer systems, as well as, if applicable, the way in which their certification will be carried out.

In this sense, we understand that companies, the self-employed, producers and marketers of the referred software and computer systems will have a reasonable period of time to adapt them to the current legislation.

We also expect that the AEAT will have more resources in terms of IT specialists to help taxpayers to comply with these obligations and thus avoid the heavy fines already mentioned.