How are the main tax novelties of the Anti-Fraud Law going to impact us?

The author explains the great changes that will affect taxation with the new anti-fraud regulations.

Published in the BOE of last Saturday, July 10, 2021, and with entry into force the day after its publication, except for some provisions in which its effects are delayed 3 months, the law has been enacted whose title already gives an idea of ​​the multiple scope that regulates: “Law on measures to prevent and combat tax fraud, transposing Directive (EU) 2016/164 of the Council, of July 12, 2016”.

It establishes rules against tax avoidance practices that directly affect the functioning of the internal market, modification of various tax regulations and in terms of gambling regulation.

As a general summary, we can anticipate that the rights and guarantees of taxpayers, the vast majority of whom are not fraudsters, are giving way due to the repressive norms of those punishable activities that limit and constrain, progressively and continuously, the scope of personal freedom of all citizens, to limits where one wonders if the remedy is not worse than the disease.

Thus, we briefly summarize some of the most relevant novelties of the law:

A.- CORPORATE TAX:

-In relation to the taxation of the tacit capital gain in case of transfer of domicile of an entity within the scope of the European Union (Exit Tax).

It accrues when a taxpayer moves his assets or his fiscal residence out of the tax jurisdiction of the State of residence, to tax the economic value of any capital gain created in its territory (even if that capital gain has not yet been realized at the time of departure). ).

The new rule replaces the deferral regime previously provided for in the case of a change of residence of an entity to another Member State of the EU or the European Economic Area that has entered into a mutual assistance agreement with Spain in matters of collection of tax credits, for the tacit capital gains generated before their transfer until the moment in which the patrimonial elements were transferred to third parties, by an immediate accrual regime on the occasion of the change of residence, although the installment by equal annual fifths is allowed, in the fiscal year transfer and in the following four years, at the request of the taxpayer.

This provision is applied with similar characteristics in the case of taxpayers subject to IRNR who transfer both an isolated element and their activity as a whole to a State with the characteristics indicated in the previous paragraph.

-The regime of the Variable Capital Investment Companies (SICAV), is modified without great importance, establishing new requirements that reinforce their collective nature and avoid their use as a single-person investment vehicle through the use of fictitious partners (“mariachis”). Thus, to compute the minimum number of partners, a minimum investment level of 2,500 euros per partner (12,500 in the case of investment companies by compartments) is required, and entities must maintain a register of partners during the tax prescription period.

B.- PERSONAL INCOME TAX:

– Obligation to declare the virtual currencies and the collections and payments made with them. With effect from July 11, 2021, regulations are established that allow the verification of the taxpayer’s obligation to declare in the Wealth Tax and in the Income Tax, the value and profits derived from such assets.

-On the taxpayer’s side, the obligation to inform about the virtual currencies located abroad, of which he is the owner, has the status of beneficiary or authorized or in some way holds the power of disposition, is established; guarded by persons or entities that provide services to safeguard private cryptographic keys on behalf of third parties, to maintain, store and transfer virtual currencies. This obligation is reinforced by the imposition of a penalty of 5,000 euros for each piece of information that should have been declared with a minimum of 10,000 euros.

-On the side of the depository person or entity, the obligation of persons residing in Spain or abroad, who provide services to safeguard private cryptographic keys on behalf of third parties, to maintain, store or transfer virtual currencies, is established, the obligation to provide the Tax Administration with information on all the virtual currencies that are kept in custody, including the balances in each virtual currency or in cash, identifying the authorized holders or beneficiaries of such balances.

This obligation extends to communicating the acquisition, transmission, exchange and transfer operations in which they intervene or mediate, presenting a nominal list of intervening subjects with an indication of their address, tax identification number, class and number of virtual currencies, their price and operation date.

C.- TAX ON ASSETS TRANSMISSIONS AND DOCUMENTED LEGAL ACTS:

-A modification is incorporated, apparently minor but of considerable importance in the liquidation of this tax in the form of onerous property transfers related to real estate. Until now, the tax base was determined by reference to the “real value” of the transferred property, an indeterminate legal concept of conflicting fixation.

It is replaced by the concept of “value” equating it to “market value” defined as “the most likely price for which a good could be sold free of charges between independent parties.” In addition, it is presumed, unless there is evidence to the contrary, that the market value will be the reference value set in the electronic office of the General Directorate of Cadastre. It is an undoubted improvement in legal certainty related to the cost of real estate acquisitions.

D.- TAX ON WEALTH:

-In relation to the regulations of the Autonomous Community applicable to non-residents, the right to apply the regulations approved by the Autonomous Community where the highest value of assets and rights for all non-resident taxpayers is located. Initially this right was not granted to non-residents, later it was extended to EU residents to avoid the discriminatory treatment that had been observed in court.

With this modification, the application of the regulations of the Autonomous Community in which most of the assets are located is extended to all non-residents. Thus, the lien of the non-resident who owns only one property, a frequent case, is equated to the lien of residents.

E.- GENERAL TAX LAW:

– Prohibition of tax amnesties. With the dubious practical effects that it may have to avoid future legislative modifications, it is provided “… the establishment of any extraordinary instrument of fiscal regularization that may imply a reduction of the tax debt accrued in accordance with current regulations is prohibited.”

-Modification of the system of surcharges for extemporaneous presentation of declarations.

The new applicable surcharge is 1% plus an additional 1% for each full month of delay with which the self-assessment or declaration is filed with respect to the term established for filing and payment. If the presentation is made after 12 months have elapsed from the end of the period established for the presentation, the surcharge will be 15%.

In addition, the regularization corresponding to other periods of the same tax concept that has been regularized by the Administration without sanction is excluded from the surcharge, provided that it is regularized before 6 months from the liquidation.

The previous system (5% in the first 3 months, 15% thereafter until the end of the year and 20% thereafter, plus interest on arrears) entailed a “jumping error” that discouraged filing returns in intermediate periods.

– Prohibition of production and possession of computer programs or systems that allow the manipulation of accounting and management data, It establishes (…) the obligation on the part of producers, marketers and users that the computer or electronic systems and programs that support the accounting processes of invoicing or management of those who develop economic activities, guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records.

Without interpolations, omissions or alterations of which the proper annotation is not left in the systems themselves. This provision is reinforced with an extremely onerous sanctioning regime, which incurs in a debatable “punitive copyright law”: the mere production of systems or programs that allow the manipulation of accounting and management data, or possession without adequate certification. , will be sanctioned with a fixed fine of 150,000 euros, for each year and for each system if they have been sold and 50,000 euros if they have not been sold to third parties, for their simple possession.

Operations in which any of the parties involved act as an entrepreneur or professional for an amount equal to or greater than 1,000 euros or its equivalent in foreign currency cannot be paid in cash.

-Judicial authorization to enter the domicile of the taxpayers. The need for prior judicial authorization for the entry into the domicile of the taxpayers is confirmed and the terms of the application agreement that must be formulated by the Administration are established, although this agreement (and the entry requested) is allowed to be prior to the start of the administrative procedure in question, must be duly justified and reasoned in relation to the purpose, necessity and proportionality of said entry, all in accordance with the jurisprudence of the Supreme Court.

-Modifications of the law of notaries in relation to the deregistration in the fiscal census of entities. It is modified to ensure that entities that have been removed from the tax census of legal entities cannot make entries in any public registry, nor grant deeds before a notary.

For these purposes, the obligation to include the tax identification number in the public deed by which any type of legal entity is created or constituted is expressly confirmed, and the provision of a computerized system through which the General Council of the Notaries will provide the Tax Administration with the identification of those entities with a revoked tax identification number that have tried to grant a public document.

-Limitation of cash payments. Operations in which any of the parties involved act as an entrepreneur or professional for an amount equal to or greater than 1,000 euros or its equivalent in foreign currency cannot be paid in cash. This limit is set at 10,000 for private individuals with tax domicile outside of Spain.

***F. Javier Rodriguez Santos He is a partner of the law firm B. Cremades & Asociados