B Law & Tax
26 April 2023

Tax advisor: Precautionary suspension by the Supreme Court of the second paragraph of article 45.4.b) of RGAT

The Contentious-Administrative Chamber of the Supreme Court has ruled and decided to suspend as a precautionary measure the second paragraph of article 45.4.b) of the RGAT (General Regulation of the actions and procedures for tax management and inspection and for the development of the common rules of the procedures for the application of taxes).

The precautionary suspension has been adopted in the precautionary measures part of the contentious-administrative appeal no. 153/2021, filed by the Spanish Association of Tax Advisors.

In this case, Royal Decree 243/2023 amending the RGAT, thus amending Directive 2011/16/EU, on the automatic and compulsory exchange of information in the field of taxation in relation to cross-border mechanisms subject to communication of information, is challenged.

In this action, the plaintiff requested an interim injunction to suspend the contested provision, invoking a situation of urgency. However, the court denied the interim injunction at that time because it considered that the necessary requirements for making a decision without hearing the other party were not met. Therefore, the processing of the separate section on injunctive relief was continued in order to hear the respondent.

The appellant twice requested the suspension of the general provision and its precepts that were the subject of the appeal, but the Chamber denied both requests. Subsequently, however, the appellant filed a new request for a stay based on a change of circumstances, namely the CJEU judgment of December 8th, 2022, which resolved a preliminary question raised by the Belgian Constitutional Court on the rights to privacy. Subsequently, the Supreme Court decided that the requirements supporting the adoption of the precautionary measure requested are given, but only in relation to article 45.4.b). “In this case, the exempted intermediary must communicate this circumstance within five days from the day following the day after the information obligation arises to the other intermediaries involved in the mechanism and to the interested taxpayer through the communication referred to in the twenty-fourth additional provision of Law 58/2003, of December 17th, General Tax Act”, dictates the Supreme Court.

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