B Law & Tax
17 November 2023

Tax advisor: Analysis and Proposal for Modification of Late Filing Surcharge: Ruling from the High Court of Justice in Madrid

Assessment of the Penalty for Late Filing

The Judgment of October 4, 2023, from the Superior Court of Justice (TSJ) of Madrid reviews the imposition of a penalty for late filing carried out by the Administration. The Court initially acknowledges the appropriateness of the penalty, arguing that in this case, all necessary conditions are met for the Administration to impose such a penalty. The late filing was done voluntarily, without prior request, resulting in a debt to be paid. The idea that this only entails the payment of late interest on the amount owed is dismissed.

 Application of the New Legislation according to Article 27.2 of the LGT

However, the bench, based on the recent legislation of Article 27.2 of the General Tax Law (LGT), suggests applying the new penalty percentages established in that provision, even retroactively, in accordance with the subsidiary argument presented by the plaintiff entity. In the contested settlement, the State Tax Administration Agency (AEAT) demands a penalty of 5%, resulting from the application of the previous regulations.


 Proposal for an Adjusted Penalty Percentage

Without proscription, according to the new wording of Article 27.2 of the LGT, it is proposed to apply a penalty percentage of 1%, with an additional 1% due to a delay in filing the declaration by 51 days. It is argued that, since only a complete month of delay has been exceeded, it is appropriate to increase the general penalty of 1% with an additional 1% for the entire month of delay. In summary, it is suggested to apply a total penalty of 2% instead of the 5% proposed by the AEAT based on euros, partially accepting the appeal and agreeing to the alternative request of the plaintiff entity to apply the new penalty percentage established in Article 27.2 of the LGT.


 Consequences and Measures to Adopt

This result implies the revocation of the contested settlement and the issuance of a new settlement by the AEAT, where a 2% penalty is applied to the taxable base in euros. Additionally, it is emphasized that there is a waiver of the reduction of the penalty, as the plaintiff entity has not objected to such waiver in this appeal.


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