Resolution of 19 April 2016 by the Tax Collection Department of the State Tax Administration Agency publishing the Agreement with the National Securities Market Commission for the enforcement collection of its fees

OFFICIAL STATE BULLETIN
No. 102 Thursday, 28 April 2016 Sec. III. Page 28422
III. OTHER PROVISIONS
MINISTRY OF FINANCE AND PUBLIC ADMINISTRATIONS 4068 Resolution of 19 April 2016, by the Tax Collection Department of the State Tax Administration Agency, publishing the Agreement with the National Securities Market Commission for the enforcement collection of the fees of said Entity.
Having been signed on 12 April an Agreement between the State Tax Administration Agency and the National Securities Market Commission for the enforcement collection of the fees of said Entity, its publication in the "Official State Bulletin" is appropriate, in accordance with the provisions of Article 15 of Law 30/1992 on the Legal Regime of Public Administrations and Common Administrative Procedure. The aforementioned Agreement is attached as an Annex. Madrid, 19 April 2016.–The Director of the Tax Collection Department of the State Tax Administration Agency, Soledad García López.
ANNEX
Agreement between the State Tax Administration Agency and the National Securities Market Commission for the enforcement collection of the fees of said entity In Madrid, on 12 April 2016.
PARTIES
On the one hand, Mr. Miguel Ferre Navarrete, President of the State Tax Administration Agency, representing it pursuant to Article 103.Tres.2 of Law 31/1990, of 27 December, on the General State Budgets for 1991, and on the other hand, Mrs. María Elvira Rodríguez Herrer, in her capacity as President of the National Securities Market Commission, in its name and representation, in accordance with the provisions of Article 25.1.e) of Legislative Royal Decree 4/2015, of 23 October, approving the consolidated text of the Securities Market Law. STATEMENTS
1. That Article 16 of Legislative Royal Decree 4/2015, of 23 October, establishes that the National Securities Market Commission (hereinafter CNMV) is a Public Law Entity, with its own legal personality, entrusted with the supervision and inspection of securities markets, as well as the other functions attributed to it in said Law.
2. That Article 32.2.b) of Legislative Royal Decree 4/2015, of 23 October, establishes that the economic resources of the CNMV include the fees it collects for the performance of its activities or the provision of its services.
3. That Law 16/2014, of 30 September, regulating the fees of the CNMV, establishes in its Article 84.2 that the collection management in the executive period of said fees may be carried out, prior to the celebration of the appropriate agreement, by the collection bodies of the State Tax Administration Agency.
4. That Article 103 of Law 31/1990, of 27 December, on the General State Budgets for 1991, creates the State Tax Administration Agency (hereinafter, Tax Agency), which is the administrative organization responsible, in the name and on behalf of the State, for the effective application of the state tax and customs system, and of those resources of other Administrations and Public Entities, national or from the European Communities, whose management is entrusted to it by Law or by Agreement.
5. That, in turn, paragraph 2 of Article 3 of the General Collection Regulation, approved by Royal Decree 939/2005, of 29 July, establishes that the collection in the executive period of public law resources whose management is attributed to a public entity linked to the General State Administration, other than those indicated in paragraph 1 of the same Article 3, shall correspond to the Tax Agency, once the appropriate Agreement has been established, if applicable.
6. That the CNMV and the Tax Agency agree that the enforcement collection of the CNMV fees shall be carried out through the collection bodies of the Tax Agency in accordance with the bases set forth below.
Consequently, they agree:
Bases
First. Object and legal regime.
The Tax Agency assumes the executive collection management of the CNMV fees when the latter entrusts it to do so.
Such collection shall be governed by:
a) Law 58/2003, General Tax Law, of 17 December. b) Law 47/2003, General Budgetary Law, of 26 November. c) The General Collection Regulation approved by Royal Decree 939/2005, of 29 July, as well as by the other provisions issued or that may be issued in its development. d) Law 16/2014, of 30 September, regulating the fees of the National Securities Market Commission. e) In general, by the current regulations applicable in the matter of collection management. f) By the bases of this Agreement. Second. Scope of application. The collection management subject to this agreement shall be carried out throughout the national territory, making use of the same information means and technical procedures as those used for the executive collection of the State's rights and its Autonomous Bodies. Likewise, under the terms and conditions established by regulations on mutual assistance between Member States of the European Union or within the framework of agreements to avoid double taxation or other international agreements, the collection management may extend to other States pursuant to the provisions of said regulations. Third. Competences of the Tax Agency and the CNMV.
1. It corresponds to the CNMV:
a) To resolve appeals and incidents related to the assessments of the debts to be collected. b) To issue enforcement notices and resolve appeals for reconsideration filed against them, as well as to process and resolve requests for suspension of the impugned act, informing the Tax Agency thereof, indicating, if applicable, the guarantee provided. c) To agree on the declaration of uncollectible credits, in accordance with Article 173 of the General Tax Law, upon proposal of the Tax Agency. Without prejudice to the foregoing, the competent bodies of the Tax Agency may reactivate credits that have been included in proposals for declaration of uncollectibility, when they become aware of circumstances that allow restarting their executive collection management. In particular, the Tax Agency bodies will reactivate credits when the obligor seeks to satisfy the debts or request an installment or deferral of payment thereof. d) To assess late interest on debts collected via enforcement, except in the cases established in Articles 53.1 and 53.2 and 72.4.b), c) and d), both of the General Collection Regulation, in which it will correspond to the Tax Agency to carry out such assessment. e) The declaration of prescription of debts sent for management via the administrative enforcement procedure, upon proposal of the Tax Agency.
2. It corresponds to the Tax Agency:
a) The actions of the enforcement procedure not cited in point 1 above. b) To resolve requests for deferral and installment in the executive period with the same temporal and quantitative criteria applied by the Tax Agency for State debts, without prejudice to the CNMV's ability to claim this function for itself when deemed appropriate. c) To resolve third-party claims that may be promoted in the enforcement procedure. d) To know and resolve appeals for reconsideration filed against collection management acts issued by the Tax Agency in the executive period, as well as to process and resolve requests for suspension of the impugned act. e) To process and resolve requests for suspension of the enforcement procedure in economic-administrative appeals filed against acts of the Tax Agency's collection bodies in the cases provided for in Articles 43 and 44 of the General Regulation for the development of Law 58/2003, of 17 December, General Tax Law, in the matter of review in the administrative route, approved by Royal Decree 520/2005, of 13 May. f) To forward to the competent Economic-Administrative Tribunal the requests for suspension of acts of an economic nature issued by the Tax Agency's collection bodies referred to in Article 46 of the General Regulation for the development of Law 58/2003, of 17 December, General Tax Law, in the matter of review in the administrative route, approved by Royal Decree 520/2005, of 13 May. g) The defense of collection rights related to the resources subject to this Agreement that are subject to insolvency proceedings. For these purposes, representation and defense in court shall correspond to those who have this competence attributed regarding the Tax Agency, without prejudice to what is stated in the following paragraphs. The Tax Agency shall inform the CNMV of the resources that have been certified in the insolvency process, which may assume their defense if it deems it appropriate. Without prejudice to the specific collaboration that may be established, the Tax Agency shall forward to the CNMV any agreement or settlement proposed in insolvency that may affect the resources subject to this Agreement, conveying the position to be adopted and understanding the CNMV's conformity if it does not state otherwise within ten days. h) The adoption of precautionary measures under the terms provided in Article 81 of Law 58/2003, General Tax Law. i) The execution of guarantees as established in Article 168 of Law 58/2003, General Tax Law. j) To propose, if applicable, to the CNMV, once the corresponding actions have been carried out, to issue the administrative act of derivation of solidary or subsidiary liability, when the Tax Agency, during the collection procedure of a CNMV tax debt, becomes aware of any of the cases of liability derivation. Notwithstanding the foregoing, the Tax Agency shall be responsible for the collection management against successors in the cases provided for in Articles 39 and 40 of Law 58/2003,
General Tax Law, as well as the declaration of solidary liability referred to in Article 42.2 of Law 58/2003, General Tax Law.
3. Coordination between Administrations:
Actions carried out by interested parties or documents submitted by them to any of the bodies shall be accepted by the receiving body and communicated or forwarded to the competent body.
Fourth. Procedure.
1. Initiation of collection activity.
After the deadlines for payment in the voluntary period have expired without the debts being satisfied, the competent body of the CNMV shall issue the corresponding enforcement notice, as established in Article 167.1 of Law 58/2003, General Tax Law, and Article 12.1 of Law 47/2003, of 26 November, General Budgetary Law, which shall contain at least the data specified in Article 70.2 of the General Collection Regulation, approved by Royal Decree 939/2005, of 29 July. The Administrative Unit designated for this purpose by the CNMV shall periodically send to the Tax Agency, by the means determined by the Tax Collection Department, a file comprising the debts subject to enforcement, whose management is entrusted to the Tax Agency under the terms of this Agreement. This list of debts shall be used by the Tax Agency solely for the purposes provided for in this Agreement. The technical specifications of said file must comply with those established in Annex I attached to this Agreement. The content of each shipment must comply with the following requirements:
a) Debts with an outstanding amount to be collected lower than that established for State Public Treasury debts by the Ministry of Economy and Finance pursuant to the provision contained in Article 16 of Law 47/2003, of 26 November, General Budgetary Law, may not be sent. b) Debts that have been the subject of an appeal shall be specified, and whether the appeal is pending resolution, in accordance with the requirements of type 1 register in Annex I. c) When guarantees for payment of the debts sent for management have been constituted before the CNMV, as many type 2 registers, specified in Annex I to this Agreement, as guarantees exist for each debt must be completed. d) In any case, when the CNMV is aware of complementary data that could facilitate collection management, they shall be specified in type 3 registers (one per debt) whose design is contained in Annex I of this Agreement. e) Likewise, the CNMV shall specify in type 4 registers of Annex I (one for each debt):
– Name of the body that issued the enforcement notice.
– Possible appeals to be filed.
– Prescription period for each debt.
– Date of the last act interrupting prescription. f) Likewise, the Tax Agency will enable a specific procedure in its electronic headquarters that will allow the individual upload of debts for their executive collection management, in exceptional cases where the CNMV deems the incorporation of debt justified. The content of these individual debt shipments must meet the previous requirements.
2. Valuation of assets.
Before its acceptance, the computer file shall be subjected to validation by the corresponding services of the Tax IT Department.
The Tax Agency shall inform of the validation results and the distribution of debts to the various Delegations based on the taxpayers' domiciles through the file defined in Annex II of this Agreement.
In the event that the data recorded are incorrect, the CNMV shall be responsible for the effects that may arise from such cause, provided that these effects are the consequence of an error attributable to the CNMV.
3. Deferrals and Installments.
Requests for deferral or installment of debts must be submitted by the obligors to the Tax Agency's collection bodies where the debt is being managed.
When requests for deferral or installment are submitted to the CNMV, they shall be forwarded to the Tax Agency's collection bodies indicated in the previous paragraph within a maximum period of ten days from the submission of the request.
When, in accordance with the provisions of Base Third.2.b), the CNMV claims for itself the resolution of some of the requests for deferral or installment, the collection management by the Tax Agency shall be considered concluded. In the event of non-compliance with the deferral or installment agreement, when so requested by the CNMV, the Tax Agency shall continue the executive collection management of these debts.
4. Suspension of the procedure.
The suspension of the procedure due to the filing of appeals and complaints shall occur in the same cases and conditions as for State Public Treasury debts.
If, after the debts have been sent, the CNMV notifies the Tax Agency's collection bodies of the suspension of the enforcement procedure, the executive collection management regarding them shall be considered concluded. For their continuation, the provisions of the resolution or judgment that has resolved the appeal or complaint that motivated the suspension of the impugned act shall apply.
5. Payments.
The collection of the debts subject to this Agreement may only be carried out by the Tax Agency's collection bodies through their collaborating entities or, if applicable, the entities providing cash services in the Delegations and Administrations of the Tax Agency, by the means and procedures established for executive collection. If the CNMV were to collect any right for which the enforcement procedure has been initiated, it must forward to the collecting body a certification accrediting it, with discharge of the certified part. In such case, the procedure shall continue for the pending amount, if any, of principal debt, enforcement surcharge, and costs incurred.
6. Modification of the enforcement surcharge.
When the ordinary enforcement surcharge has been assessed in the enforcement notice, and the executive surcharge is to be applied in accordance with Article 28 of the General Tax Law, the Tax Agency's collection bodies shall proceed to reduce the initially assessed surcharge. The data resulting from such reduction shall not generate the service cost established in Base Fifth of this Agreement. Likewise, when the ordinary enforcement surcharge has been assessed in the enforcement notice, and the reduced enforcement surcharge is to be applied in accordance with Article 28 of the General Tax Law, the Tax Agency's collection bodies shall proceed to reduce the initially assessed surcharge. The data resulting from such reduction shall not generate the service cost established in Base Fifth of this Agreement.
7. Refund of undue payments.
The Tax Agency shall process refunds of undue payments made before its own bodies corresponding to debts sent for collection management, without prejudice to the fact that the agreement recognizing the right to the refund shall be issued by the competent body of the CNMV in cases where such right is a consequence of a self-assessment form submitted to the CNMV or an act issued by it. The Tax Agency shall monthly forward to the CNMV the information corresponding to the refunds processed as provided in the previous paragraph, in accordance with the technical specifications contained in Annex IV of this Agreement.
8. Reimbursement of the cost of guarantees.
The Tax Agency shall process the reimbursement of the cost of guarantees constituted before it itself to obtain the suspension of the execution of an act or to defer or installment the payment of a debt sent for collection management, without prejudice to the fact that, in accordance with Article 75 of Royal Decree 520/2005, of 13 May, approving the General Regulation for the development of Law 58/2003, of 17 December, General Tax Law, in the matter of review in the administrative route, the agreement for reimbursement shall be issued by the corresponding body of the CNMV. The Tax Agency shall monthly forward to the CNMV the information corresponding to the reimbursements of the cost of guarantees processed as provided in the previous paragraph, in accordance with the technical specifications contained in Annex V of this Agreement.
9. Alienation of assets and rights.
For the purposes of complying with the provisions of Article 172.3 of Law 58/2003, General Tax Law, the CNMV, as holder of the debt, shall communicate to the Tax Agency's collection bodies managing it whether the assessment act for the same is final.
Notwithstanding, prior to the agreement to alienate the seized assets, the Tax Agency may request information from the CNMV regarding the finality or non-finality of the debt, which must respond within a period of one month.
10. Allocation of assets to the CNMV.
When in the alienation procedure, any of the seized assets or assets provided as guarantee have not been allocated, the CNMV may allocate said assets under the terms established in the General Collection Regulation for the allocation of assets to the State, with the following particularities:
1.º The Tax Agency's collection body shall offer the CNMV the allocation, indicating if there are charges or encumbrances preferential to its right, the amount thereof, and the value at which the assets must be allocated.
2.º The CNMV must communicate the adopted resolution to the collection body at the latest within a period of one month. The allocation shall be understood as not accepted once this period has elapsed without express response.
11. Procedure costs.
The costs of the enforcement procedure are considered to be those expenses that arise in connection with the collection action, specified in the General Collection Regulation.
The costs incurred that cannot be collected from the debtors shall be borne by the CNMV, reducing the amount to be transferred to it in the monthly settlement.
12. CNMV collaboration and additional information.
To manage the collection of the economic rights referred to in this Agreement, the collection bodies shall request, if necessary, the collaboration of the competent body of the CNMV. For these purposes, information on assets and rights that the CNMV might be aware of to successfully carry out the collection of debts shall be requested.
13. Write-offs.
The collection bodies shall write off enforced debts for any of the reasons established in current legislation, as well as for what is provided in the Bases of this agreement.
In particular, they shall write off debts that are in the same situation as those referred to in the Order of the Ministry of Economy and Finance issued in development of what is provided in Article 16 of Law 47/2003, General Budgetary Law, in relation to public law debts whose collection competence corresponds to the Tax Agency. Likewise, at the request of the competent body of the CNMV, debts regarding which payment in kind is to be proceeded before the CNMV bodies shall be written off. The justification of write-offs due to insolvency shall be carried out under the same terms as for the State and in view, if applicable, of the additional information supplied by the CNMV in application of what was agreed in the previous point. When, as a consequence of the filing of appeals or complaints or the processing of liability derivation files, the CNMV requires additional information on write-offs due to insolvency, it may request a copy of the documentation contained in the administrative file. This additional information shall be provided to it.