Tax advisors believe that the reform of the General Tax Law that the government approved in the Minister council, under the argument of the transposition a European directive, will establish a greater control to the Spanish taxpayers. AEDAF In addition, it details in a statement that “the transposition of the DAC6 into the Spanish tax system continues to pose major problems of legal certainty.”
According to the Spanish Association of Tax Advisers, AEDAF, the recently approved Bill by the Government does not resolve the important technical deficiencies that concurred in the approval of the Directive of the European Union.
They explain that the reform by the Government of the General Tax Law in transposition of Directive DAC6 (2018/822 of the Council of Europe) “Has to do with the automatic and compulsory exchange of information in the field of taxation in relation to cross-border mechanisms subject to communication of information«. And that “the current project incorporates some relevant modifications in relation to the draft that it submitted to the public information process on June 20, 2019 and on which AEDAF has already made the appropriate observations and suggestions for improvement.”
Tax advisors detail three fundamental aspects of the project: «The regulation of professional secrecy, the regulation of the regime of infringements and sanctions and, finally, the absence of reference to the exclusion of sanctions in relation to cross-border mechanisms subject to communication of information, carried out before approval and entry into force of said transposition rule ».
According to AEDAF, “the project carries out a considerable change in the regulation of the duty of professional secrecy as a waiver of the information obligation, now clearly configured as such a waiver ». In the opinion of the AEDAF experts, a simple reading of the new Additional Provision 24.2 of the LGT incorporated in the project shows that neither is respected with the regulation of said professional secret and maintain that «the project chooses to restrict the scope of professional secrecy to the so-called ‘neutral advice’ and, furthermore, it does not reach the intermediaries who advise on the evaluation of the adequacy of said mechanism to the applicable regulations if they are in charge of procuring or facilitating its implementation. ”
“The current regulation is still more restrictive than what is provided for in the Directive and it does not respect the previous constitutional and legal recognition that our legal system attributes to the duty of professional secrecy ”, the tax advisers emphasize.
On the other hand, they explain that the project incorporates “several novelties in the sanctioning regime compared to that incorporated in the preliminary project.” On the one hand, “the planned tax offenses go from being classified as very serious in the preliminary draft to simply serious in the draft.” However, “on the other, paradoxically, the amount of the sanction is increased, which is therefore not adjusted to the proportionality principle«.
The tax advisers insist that the project continues to be “silent” regarding the impossibility of sanctioning behaviors carried out before the entry into force of the law that is approved after the processing of this bill, so it must be the courts , and ultimately the taxpayers, those who must urge compliance with the requirements derived from the principle of legality and criminality in sanctioning matters, which bind not only the courts, but also the legislator.