Law 34/2015, of September 21, Partially Amending the General Tax Law 58/2003

OFFICIAL STATE GAZETTE
No. 227 Tuesday, September 22, 2015 Sec. I. Page 83633
I. GENERAL PROVISIONS
HEAD OF STATE
10143 Law 34/2015, of September 21, Partially Amending Law 58/2003, of December 17, General Tax Law.
FELIPE VI
KING OF SPAIN
To all who see and understand this.
Know: That the General Courts have approved and I come to sanction the following law:

PREAMBLE
I
Since its entry into force, Law 58/2003, of December 17, General Tax Law, has been subject to several modifications, although the one now implemented is the most far-reaching, affecting various parts of the legal text, which find their justification in reasons of diverse nature detailed below, ensuring this reform, both in the matters that are the object of modification and in those of new incorporation, the maintenance of the codifying character recognized in the statement of reasons of Law 58/2003, of December 17, General Tax Law.

This norm follows the principle of continuous adaptation of the tax norm to the evolution of society and, very particularly, to the mechanisms, of diverse nature, that constitute the legal and economic relations between citizens, relations on which the tax obligation ultimately rests, an adaptation that, however, seeks to respect at all times a principle of stability of the regulations that strengthens legal certainty for the benefit of the legal operators who apply the tax system: the tax obligors, the social collaborators and the Tax Administration itself.

In this sense, this Law follows the guidelines set by Law 36/2006, of November 29, on measures for the prevention of tax fraud, and the more recent Law 7/2012, of October 29, on the modification of the tax and budgetary legislation and the adaptation of the financial legislation for the intensification of actions in the prevention and fight against fraud.

The needs that the present text seeks to cover are of diverse nature, integrating exclusively technical modifications regarding provisions already incorporated in the current Law 58/2003, of December 17, General Tax Law, and incorporating new substantive and procedural figures to cover existing legal gaps or adapt the norm to overcome situations of interpretative, administrative and jurisdictional controversy, brought to light over these years.

The essential objectives pursued by the modifications are the following:
Strengthening legal certainty for both tax obligors and the Tax Administration and reducing litigation in this matter, for which it is fundamental to achieve a more precise, clear and systematic regulation of all those procedures through which the tax system is applied and managed.
Preventing tax fraud, incentivizing the voluntary compliance of tax obligations.
Increasing the effectiveness of administrative action in the application of taxes, achieving a better use of the resources available to the Administration. cve: BOE-A-2015-10143 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE
No. 227 Tuesday, September 22, 2015 Sec. I. Page 83634 These objectives can be synthesized into one: to improve, adapt and complete the regulation of the Spanish tax system, making it fairer and more effective.

In a detailed manner, the measures adopted through the present text are the following:
II
The norm explicitly states the faculty of the bodies of the Tax Administration that have been attributed the initiative for the elaboration of provisions in the tax order, to issue interpretative provisions with binding character in the application of taxes, a faculty already contained implicitly in the function that the current legislation attributes to them and which is now simply the object of explicit reflection in the Law.

The figure of conflict in the application of the norm was configured in Law 58/2003, of December 17, General Tax Law, as an evolution of the previous fraud of law and with a different configuration of the latter, constituting itself as an instrument for the fight against the most sophisticated mechanisms of tax fraud, materialized as a rule, as practice shows, in the use of negotiable figures susceptible to being qualified as abusive.

Once ten years have passed since the entry into force of the Law, the experience accumulated on this institute advises the modification of its legal regime in the sense of allowing its sanctionability, and this with a double purpose.

On the one hand, to adapt this regime to the jurisprudential doctrine, which does not exclude the fraudulent intent in this figure, a conclusion that is also supported by a broad sector of scientific doctrine and constitutes the usual situation in Comparative Law, reconciling the norm with the safeguard of the principle of typicity in the sanctioning Law, concretized in Title IV of the Law, with the necessary flexibility in a general anti-abuse clause.

To this effect, a new infringing type is configured in the Law, in which the possible material results of the obligor's conduct are integrated as well as the disregard by the latter of the pre-existing administrative criteria that had determined the abusive character of substantively equal acts or transactions.

On the other hand, to facilitate the exact compliance with the mandate of article 31 of the Constitution that consecrates the general duty to contribute, through the persecution of those complex devices oriented towards tax fraud.

From the entry into force of Royal Decree 335/2010, of March 19, regulating the right to make customs declarations and the figure of the customs representative, every customs representative, not only customs agents and commissionaires, can act as such before the Customs in the modality of direct representation, which motivates that the possibility of incurring subsidiary liability is expanded to all of them.

The reform incorporates a clarification of transcendent character, explicitly stating in the positive text the interpretation of the set of norms regulating the right to check and investigate by the Administration, emphasizing the conceptual distinction that exists between this right and the right to assess, with the purpose of overcoming the interpretative problems that this matter has raised, traditionally focused on the scope of checking the correctness of certain tax credits and on the legality of the compensation, deduction or application thereof.

The Law clarifies, to this effect, that the statute of limitations of the right to assess does not transcend, in any of its aspects, to the right to check and investigate, a right that will only have the limitations collected in the Law in the cases where they are expressly indicated in the legal text itself, specifically the maximum time established for the initiation of checks whose object forms part of certain tax credits, or those that, obviously, may be established in the law of each tax.

It is fundamental, again to avoid interpretative doubts, the explicit recognition that is made regarding the qualification faculties attributed to the Administration in relation to facts, acts, activities, exploitations and businesses that, happened, carried out, developed or formalized in tax periods with respect to which the statute of limitations of the right to assess had occurred, would have to produce fiscal effects in exercises or periods in which such prescription had not occurred. cve: BOE-A-2015-10143 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE
No. 227 Tuesday, September 22, 2015 Sec. I. Page 83635 With these modifications, it is made possible not only to guarantee the right of the Administration to carry out checks and investigations, but also to ensure the right of the tax obligor to benefit from the aforementioned tax credits, as well as the correct exercise of other rights, such as, for example, the right to rectify their self-assessments when in the check of the validity of the rectification the Administration must verify aspects linked to exercises with respect to which the statute of limitations of the right to assess occurred.

A modification is introduced in the scope of formal tax obligations, to specify, in relation to the register books, the possibility that through regulatory norm the obligation of keeping them through telematic means is regulated.

In taxes of periodic collection by receipt, after registration in the respective registry, roster or matriculation, they do not require the presentation of a declaration or self-assessment, so the beginning of the computation of the limitation period is located at the moment of the accrual of said tax, since it is from that moment when the managing Administration can carry out the actions directed ultimately to the assessment of the tax. This specialty is reflected in the Law.

The existence of connected tax obligations poses important problems in the matter of prescription not currently resolved in Law 58/2003, of December 17, General Tax Law. Thus, when the Tax Administration regularizes a tax obligation related to another of the same tax obligor, if the Administration, ex officio or by virtue of a request for rectification of self-assessment presented by the tax obligor, intends to modify the connected tax obligation applying the criteria on which the regularization of the first obligation is based, it may not be able to do so because the debt has already prescribed, giving rise to situations in which the tax obligors and the public creditor may be seriously harmed.

Thus, situations of double taxation may arise to the detriment of the tax obligor. But also situations of null taxation may occur to the detriment of the public treasury interests.

To solve the problems exposed, the regime of interruption of the prescription of connected tax obligations of the same obligor is regulated.

As a complement, the procedural channel through which the Administration will exercise its right to assess, interrupted as previously explained, is regulated, the ex officio compensation of possible amounts to be paid and to be returned resulting is made possible, and the reimbursement of those refunds that are linked to assessments that are the object of appeal or claim by the same tax obligor is guaranteed.

A technical correction is made in article 69.1 and another in 82.1 as a consequence of the renumbering of the different paragraphs of articles 68 and 81 respectively by the first final provision of Royal Decree-Law 20/2011, of December 30, on urgent measures in budgetary, tax and financial matters for the correction of the public deficit.

The recognition of the work performed by tax advisory professionals is deepened through the incorporation of a reference to the need to instrument new lines of collaboration to foster cooperative compliance of tax obligations.

In relation to the cession of data by the Tax Administration, the publication of information is allowed when it derives from European Union legislation.

At the same time, it is necessary to reinforce the mechanisms of the Public Treasury to promote the general duty to contribute of article 31 of the Constitution and the fight against tax fraud, not only through measures directed directly and exclusively to the mere repression thereof. It should not be forgotten that the Spanish Constitution provides in its preamble the will of the Nation to establish an advanced democratic society. The principle of transparency and publicity is part of the principles that must govern the action of all public powers to make that objective effective.

In this sense, the measure consisting of the publication of lists of debtors that is incorporated in Law 58/2003, of December 17, General Tax Law, must be framed in the orientation of the fight against tax fraud through the promotion of all types of preventive and educational instruments that contribute to the voluntary compliance of tax duties, in the promotion of the development of an authentic civic tax consciousness as well as in the active publicity derived from transparency in public activity in relation to information whose knowledge is relevant.

The measure is totally respectful of the reserve of tax data and, therefore, of the principles on which it is based, not forgetting the influence that in this matter has the protection of the right to privacy and the need to enhance the effectiveness of the tax system, all of them conjugated in the sense that only socially reprehensible tax conduct from a relevant quantitative optics will be the object of publicity, allowing the legislator only the diffusion of those conduct that generate greater economic harm to the Public Treasury that bring cause of the lack of payment in the original payment periods established in the Law in attention to the different typology of debts.

In short, although the principles of transparency and publicity may collide on occasions with other constitutionally protected rights, such as those of privacy and data protection, the different interests that are sought to be safeguarded must be weighed adequately, and this taking into account especially the principles of proportionality, accuracy and data retention contained in article 4.1 of Organic Law 15/1999, of December 13, on the Protection of Personal Data. Thus it is also done in other countries in our environment where different exceptions to the general principle of confidentiality of tax data are collected, such as Germany or Finland.

In the search for equilibrium between the rights integrated in the norm, that of the social body to demand the compliance of tax obligations and that of the tax obligors regarding the preservation of their privacy, taxed rules are introduced to form the lists that will be made public.

Thus it has been done in other scopes, introducing this principle of publicity in different sectors of which special protection is claimed. Thus it happens in the financial sector, in matters of prevention of occupational risks and recently regarding the sanctions of high officials, scopes all of them where the effectiveness of this type of measures in relation to the purpose pursued has been observed. Given the novelty that the text represents in this point, and the transcendence of the consequences that derive from it, the norm opts to establish direct access, to the contentious-administrative jurisdiction by the interested parties who consider that the publication is not adjusted to law.

This regulation is completed with that contained in Organic Law XX/XX, of xx, which regulates access to the information contained in sentences issued in matters of tax fraud, since it would be incoherent that the identity of those who have failed to pay their tax obligations were published and yet that of the great fraudsters, convicted by final sentence for crimes of this nature, remained hidden.

On the other hand, it is specified what is the probative value of invoices in the sense established in the doctrine of the Central Economic-Administrative Tribunal, that is, denying that invoices are a privileged means of proof with respect to the reality of the operations.

Taking into account the doctrine of the Central Economic-Administrative Tribunal according to which VAT assessments can only refer, according to the case, to monthly or quarterly assessment periods, it is allowed to distribute linearly among said periods the tax quotas discovered by the Administration in annual computation, when the tax obligor does not justify that the quotas correspond to another period according to the tax regulations. cve: BOE-A-2015-10143 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE
No. 227 Tuesday, September 22, 2015 Sec. I. Page 83637 It is expressly pointed out the impossibility for taxpayers who at the beginning of the check or investigation procedure had already applied or compensated the amounts they had pending, through a complementary declaration, to leave without effect the compensation or application made in another exercise and request the compensation or application of those amounts in the checked exercise, which could alter the classification of the infringement eventually committed.

The deadline to initiate or end the sanctioning procedure is suspended when a contradictory expert appraisal is requested, given that the current regulation could lead to the impossibility of imposing a sanction when such appraisal is promoted against the assessment.

It could also happen that the sanction had already been imposed at the moment when the contradictory expert appraisal is requested. In that case, it is necessary to be able to adapt the sanction to the assessment resulting from the appraisal without it being necessary to resort to a revocation procedure.

The legal regime of the limited check is modified with the purpose of facilitating the protection of the rights of the tax obligor by allowing him to voluntarily and without prior requirement, bring his commercial accounting during the course of a limited check procedure for the simple verification of certain data that the Administration has, without said voluntary contribution having preclusive effects.

Having verified the existence of numerous incidents in the interpretation of the regulation of the deadlines of inspector actions, a new regulation is needed that, without prejudice to the rights and guarantees of the tax obligors, allows reducing the conflictivity in this matter.

Several are the objectives pursued with the new regulation of the deadlines of the inspector procedure:
a) Significantly simplify the current legislation, by eliminating a broad and complex system of justified interruption cases, delays not attributable to the Administration, and extension of the deadline. Likewise, the case of unjustified interruption for more than six months is suppressed. b) Greater legal certainty regarding the computation of the deadlines of the inspector procedure, incorporating new obligations to inform the tax obligor of the vicissitudes of said deadline (duration and, if applicable, suspension and extension thereof), in such a way that the obligor can clearly know what is the deadline of the procedure. c) Significantly reduce tax conflictivity.

That is, the modification of the regulation of the deadline of the inspector procedure will allow inspector actions to have a more predictable end date, known by the tax obligor, without diminishing any of his rights, contributing, in turn, to the good end of tax assessments and defense of general interests.

The reform implies an increase in the deadline of the inspection procedure and, as a counterpart, during the processing certain vicissitudes will occur that will not lengthen the deadline that the Tax Administration has to finish the procedure, such as deferrals requested by the tax obligor to fulfill procedures, or the waiting period for data requested from other Administrations. Nevertheless, certain periods of suspension defined objectively in the Law in cases that prevent the continuation of the procedure may be deducted, and the duration of the procedure may be extended by the days of courtesy in which the obligor requests that no actions be carried out with him or when the tax obligor provides documentation late that has been previously required or provides documentation once the need to apply the indirect estimation method is appreciated.

The consequences of exceeding the deadline of the inspector procedure will be the currently provided.

On the other hand, the regulation of the indirect estimation method has shown insufficient in some aspects. These defects and insufficiencies have been partially corrected by jurisprudence. Nevertheless, the pronouncements of the Courts are dispersed and heterogeneous, which entails a certain legal uncertainty in the application of this regime.

Therefore, certain aspects of this matter are clarified and specified; thus, the sources from which the data to be used in the indirect estimation may proceed are indicated: from the signs, indices and modules if the obligor could have applied the objective estimation method, from the company itself, from statistical studies or from a sample carried out by the Inspection.

It is specified that indirect estimation can only be applied to sales and income, or only to purchases and expenses, or to both simultaneously, depending on the hidden or non-existent data.

In relation to the VAT quotas supported, their deductibility is admitted in this system even if the invoices or documents that, as a general rule, the VAT regulations require are not available, as long as the Administration obtains data or indications that demonstrate that the tax obligor has effectively supported the corresponding tax.

Given that the estimation of bases and quotas is made annually, in taxes such as VAT, with assessment periods lower than a year, the estimated annual quota will be distributed linearly among the corresponding assessment periods, unless the obligor justifies that a different temporal distribution is appropriate.

In relation to the sanctioning scope, to avoid that two different paragraphs of the same provision establish two alternative sanctions for the same infringement, specifically, for infringements consisting in the presentation of customs documents in an incomplete, inaccurate or with false data, when they do not determine the birth of a customs debt, it is necessary to introduce modifications in the corresponding title, which is also altered as a consequence of the new regulation of the deadline of the inspector procedure, since there may be cases of extension of said deadline once the procedure has started cve: BOE-A-2015-10143 Verifiable at http://www.boe.es