B Law & Tax
12 June 2023

Tax advisor: What does collaboration with the Tax Administration mean and the consequences of non-compliance

In 2003, the General Tax Law was passed, which emphasized the breach of the duty to provide information to the Tax Administration, giving rise to the current article 203 of the LGT and the corresponding penalties.

In the old law, resistance or obstruction was considered an aggravating factor in the grading of penalties and only affected administrative verification and investigation actions. However, the current regulation establishes that failure to comply with the requirements of the Tax Administration, issued by any body, constitutes an infraction.

Section 6.B) 1º of Article 203 of the LGT regulates the penalties applicable during a verification and investigation procedure when the taxpayer (person or entity carrying out an economic activity) is involved.

It is important to highlight that the Constitutional Court has confirmed the constitutionality of this precept through a judgment of June 2022. The established sanctions can reach up to 600,000 euros in case of not allowing access to accounting books, tax records, files, programs, operating and control systems, or denying entry to properties and premises. A fundamental characteristic of this sanction is its “instrumental” nature, since it provides the Administration with a mechanism that strengthens its position in verification, investigation and data collection actions in comparison with that of the taxpayer.

In the reports that have been published on the number of sentences issued by our courts in relation to article 203 of the LGT, there is evidence of an annual increase in the number of cases of penalties imposed on taxpayers for resisting or obstructing administrative action.

The aforementioned legislative amendment addressed the problem existing until then in relation to the computation of delays not attributable to the Administration by eliminating the complex system of justified interruptions, thus achieving a more predictable completion date for administrative actions.

In summary, we observe a decrease in conflicts related to delays not attributable to the Administration as of 2015, while cases of imposition of sanctions for resistance or obstruction during checks and inspections increase. This could simply be a coincidence or it could indicate that taxpayers have stopped disciplinedly complying with the delivery of documentation. However, it would also be valid to analyze whether the Administration is using this sanction as part of its own procedural management in a quasi-objective manner, often without adequately substantiating the existence of the subjective element that must be present when imposing a sanction, thus driving its actions by imposing penalties to conclude the verification actions within the established term.

B Law & Tax International Tax & Legal Advisors.

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