En este post se analiza la reciente medida introducida por la Ley 11/2021, de 9 de julio, de medidas de prevención y lucha contra el fraude fiscal, proyectada en el artículo 81.6 LGT, consistente en la posibilidad que tiene la Administración de acordar medidas cautelares durante la tramitación de determinados procedimientos de suspensión. Se trata de una medida muy controvertida, que va a provocar un incremento de la litigiosidad, y que lejos de convertirse en un instrumento de lucha contra el fraude, distorsiona el instituto de la suspensión, discriminando a aquellos contribuyentes que tienen una menor capacidad económica y que no pueden ofrecer garantías tasadas.
In terms of tax control, administrative criteria sometimes deviate from common sense, generating conflict with the taxpayer, as happens in the context of company-partner audits, where the Administration avoids the application of settlement solutions provided for in the tax law itself. Only by abiding by the principle of good administration and the use of conciliation techniques, often offered by the law itself, progress can be made towards a correct legal-tax relationship, also in I win, You win scenarios.
Selective taxation is fashionable and easily "marketed", appealing to a wide range of social sensitivities such as climate change, environment, pollution control, privilege, redistribution and the social function of wealth.
The recent judgment of the Supreme Court confirming Corporate Tax deductibility of the default interest settled by the Administration is being analyzed.
The pandemic has intensified the remote working, which has led to the approval of Royal Decree-Law 28/2020, on telecommuting. The regulation establishes that the company must provide its employee with the necessary IT resources and compensate him/her for the additional expenses incurred (such as electricity and other expenses of the home office). Whereas it could be argued that the resources provided to employees could be considered as an income in kind, in accordance with the provisions of the Personal Income Tax Regulations for such situations this should not be the case.
In a year marked by the appearance of COVID19 and the decrease in international displacements, we reflect on the latest rulings of the General Directorate of Taxes and the administrative interpretation criteria regarding tax residence of individuals.
Analisis of the TEAC resolution of July 17, 2020, where it is once again initiated the debate on the deductibility of the remuneration of executive administrators, and its correlation with the “Relationship Principle” or “Teoría del Vínculo” in the mercantile sphere. This is an issue that had already been clarified with the new tax law and the binding doctrine of the DGT.
In the always tumultuous fiscal scene, the summer has brought three important administrative and judicial resolutions with contrary to taxpayers interests, perhaps representative of a future trend in need of reconsideration. Meanwhile, there are still unknowns about possible immediate changes in tax regulations, including taxation of assets.
The months of June and July are usually used by drivers to prepare their vehicles for summer journeys. July is the Corporate Tax´s month, as the vast majority of companies file their returns in this month. This month of July has seen a major ruling by the Constitutional Court, which may have more consequences than those initially derived from the declaration of unconstitutionality it contains. For all these reasons, and in the same way that we are paying attention to our car, I believe that the time has come to stop and carry out a small review of the state of our Corporation Tax. Let's take step by step.
In the last years, the tax authorities have focused on checking the sale of non-traded securities, often ignoring the existence of proof guidelines and relying instead on one of two objective methods.
We have been homebound due to the declaration of the state of alarm since March 14th, which entails restrictions on the rights and guarantees laid down in the, mainly with regard the freedom of movement.
This situation is duly proportionate to the significant public health risks that have resulted from the COVID-19 pandemic. And, for this reason, it has been assumed with calm and resignation by the citizens, who are setting an example of solidarity and civility.
We are currently suffering from a historical health crisis with very important economic repercussions. On Friday the Governor of the Bank of Spain referred to this situation as an "unprecedented disturbance". It is therefore necessary and pressing to adopt public policies that, initially, mitigate the impact, and later allow the economy to be restarted as soon as possible.
Among the strategies used by the Administration to improve citizens' tax compliance is the annual publication of the identification data of taxpayers who owe more than one million euros to the Treasury, whether in tax payments, interest on late payments or penalties.
Rural savings banks and credit unions have a special tax regime in Spain, mainly regulated by Law 20/1990, of December 19, on the Tax Regime of Cooperatives. This rule explicitly establishes in its article 33 that as protected cooperatives they are, and in spite of being these the lenders of a credit are exempt from paying the mortgage registration tax, whose duty falls exclusively on the client.
In this sense, the last modification introduced in the consolidated text of the Law on Tax on Patrimonial Transmissions and Documented Legal Acts (TRITP-AJD), approved by Royal Legislative Decree 1/1993, of September 24, in relation to the application of the tax benefits and exemptions granted by the TRITP-AJD or other laws in the Tax on Documented Legal Acts, raises questions about whether the provisions of article 33 of Law 20/1990 is an express provision for the purpose of maintaining the Exemption in the constitution and cancellation of mortgage loans granted by rural savings banks and credit unions.
A few days before the end of 2019, it is convenient to review certain practical accounting and tax issues that can help us to better plan the coming year, and even save us money in taxation. Therefore, we give some advices to take into account before this year’s end.
The judgment of the National Court of last July is in comments, in which, through the indiciary test, the application of the exemption in the Personal Income Tax of a compensation for severance payments agreed in an act of conciliation before the labor authorities is denied . The Tax Authorities and the aforementioned Court presume the existence of an agreement between the parties.
The Supreme Court must resolve two new issues related to the Tax on increase in urban land value: first, whether it is possible to determine the taxable base according to the accounting result declared in the Corporation Tax; and, secondly, whether it is possible to update the acquisition value of the property according to the CPI or to some inflation correction mechanism.
For years, the assignment of subsidiary liability to company managers was a relatively rare procedure, associated with cases of serious omissions of settlements and / or tax payments. However, for various reasons, this assignment of liability has become an increasingly common procedure in recent years, which has revealed several shortcomings in its regulation and implementation, which should be corrected as soon as possible to ensure equity, and proportionality in the procedures related to the collection action.
In recent years there has been an intense debate on the fiscal regime applicable to Spanish SICAV. The measures contained in the recently published Draft Law on General State Budgets for 2019 have important consequences on these entities, which must be analyzed by their shareholders in order to seek alternatives for action.
The Government has publicized several draft laws on tax matters, which will be completed with budget bill for 2019, including upward changes in Corporate Tax. The intention of this tax adventure is the financing of public spending, reckless in domestic and European terms. The changes are not certain, because they need parliamentary maneuvers not discussed here.
The fact of introducing an anonymous author in certain way is often used in narrative. But in this case I was highly inspired by the announcement of a minimum tax for corporations, due to such low effective rate observed in these entities in recent times, particularly in big corporations. As this note is inspired by traditional fables and parables, its aim is no other than giving a value judgment, meaning that it might not be shared neither agreed by all readers.
The conflict between development and redistribution is in the focus of the debates on the most appropriate economic policy. Quite often, the arguments in favor of the preeminence of one over the other are not so rooted in the analysis of the economic and social impact of the suggested measures, as on their popularity for the electors, with an increasing trend towards social duality. This social duality distorts the principle inspiring the creation of the modern state of law: charges must be approved by those on which such charges will be levied. This post poses three illustrative examples of such a situation.
After two long years of proceedings against the Madrid City Council, the Contentious Administrative Court of Madrid has finally ruled in my favour: the controllers of the Municipal Regulated Parking Service (known by its acronym SER) are required to incorporate in the administrative file when signing a fine an image of the vehicle, in the form of photography, digital filming or other technological means, that allows them to endorse the complaint made. Not meeting this legal requirement, the fine would be illegal.
Much has been discussed lately about the legality or lack thereof of exercising economic activity through a company as opposed to channeling the same sort of activities through a partner of the latter, as well as the changes made in the Tax Authorities’ criteria. Nevertheless, this is not an issue that is new or that has undergone significant modifications in the recent past years, it is simply a litigious issue that has not yet been resolved.
The latest shock for our profession and clients arises from a sentence of the Supreme Court dated February 26, 2018, regarding the compliance in determining the executive directors' salary conditions.
Cryptocurrencies are receiving great attention since on 2008 the first one called Bitcoin came out . But it is the underlying called blockchain technology, which has been promising authentic revolutions in different fields for some time. And the most interesting thing about this technology is that it represents much more than an effective method of securing monetary transactions with cryptocurrencies. Sectors such as logistics, food, insurance, legal area and even information management in the public sector are using it.
Highlighting the current asymmetries on taxation of asset-holding companies vs entreprenurial company whose business is the rental of real estate.
The tax reform approved in the US by the end of last year, could have a lower budgetary and economic scope than the one announced during its processing. In any case, it has implied a major adjustment to the calculation of a wide range of items of federal taxes, and is already having consequences for business activity.
The report of the Committee of Experts ("the Commission") created by the government at the beginning of the year has been added to the multiple opinions expressed in the past about our system of regional financing.
This new post is a continuation of the one published on October 24th and treats in depth some of the chapters of the book "Challenges of SpanishTaxation: Controversial Issues in Tax Matters ", published by Thomson Reuters-Aranzadi, which I have had the pleasure of conduct. Given the topicality of the issues shown and after being presented at the Royal Academy of Jurisprudence and Legislation, over the next few months I will be visiting other Autonomous Communities together with some of the experts who have collaborated in the book to spread its contents.
The collective project "Challenges of Spanish Taxation: Controversial Issues in Tax Matters," edited by Thomson Reuters-Aranzadi is presented today at the Royal Academy of Jurisprudence and Legislation.
The search for solutions to the aggressive practices in terms of taxation applied by technological multinationals in recent years is a priority for both the EU and the OECD countries. The possibilities go from the creation of new taxes, like the "Google rate", to the widening of the EP concept. However, there is currently no coordinated response on an international level. A clear positioning of the Tax Administrations will be necessary, which will favor a fair distribution of taxation, but also the greater legal certainty for the development of the activities of the digital economy.
The Committee of Experts for the revision of the Regional Financing Model released a report in July 26th inspired in the principles of solidarity, sufficiency, equity, transparency, tax co-responsibility and guaranteed access of the citizens to public services based on the effective costs of such services. The correct assessment of the weight the expert's opinion is to consider the composition of the Commission.
The distribution of the profits obtained is consubstantial to partnership agreement. However, this periodic natural ending of previous pooling of goods and services in the company, is seriously altered by its correspondent taxation.
"The dead you kill are in good health". Before starting writing these lines, I wanted to be sure of the origin of this well-known phrase, which I remembered having heard in a performance of "The Revenge of Don Mendo", back in my distant school days. I never did, since I have found attributions of this phrase or similar that arrive at the beginning of XVIIth Century. Two centuries later, John Stuart Mill and other economists delved into topics that are again and again, such as theories of sacrifice and tax escalation, single tax versus multiple taxes, and saving's double taxation. These subjects, despite of being given repeatedly by dead and finished, once again enjoy good health again and again.
Since the release of the ruling issued on February the 16th, not yet published in the BOE, where the Constitutional Court declared several key provisions of the Local Tax on Property Sales of Guipúzcoa void, there have been numerous reactions in the media. Until the full written judgment is published its reach and consequences of its applications cannot be appropriately assessed. We will then further comment on that.
A Concern was prevalent in our firms the last few months: the pending amendment announced for corporate tax advance payments. Spanish Royal Decree Law 2/2016, only a few weeks old, convincingly resolved queries for corporations with an annual net turnover of at least 10 million Euros, introducing among other measures a minimum alternative advance payment of 23% on the accounting result, calculated therefore before compensating negative taxable bases of previous years and separate to application of any tax exemption or incentive. The success of the regulation in terms of collection, in parallel to the “failure” for our corporations’ cash flow was obvious, by generating revenue of 7.6 billion Euros in October, no more and no less than 30,7% of the entire tax collection scheduled for 2016.
“Arrest the usual suspects”. This is one of the most memorable phrases from “Casablanca”, although perhaps more memorable for the time and context in which Inspector Renault says it, near the end of the movie.
In one way or another, this phrase is quite present more often than it is said. For example, when tax collection falls the usual suspects are fraud, the underground economy, low tax pressure in comparative terms and low effective taxation of firms.