In order to analyse whether or not it is appropriate to impose the surcharges of the voluntary period, in each specific case, the prior analysis of the circumstances in which the delay has occurred and the disposition of the taxpayer is required.
Is the automatic application of surcharges in accordance with the law?
A taxpayer submits in time the list of assets acquired by an inheritance. Subsequently, it presents after the deadline an addition of goods, without prior requirement of the Administration.
Once the inheritance and donations tax (ISD) settlement has been received, it observes that in addition to the representative amounts of the new goods, a surcharge is added for late filing. Dissatisfied, the taxpayer files a claim with the Central Economic-Administrative Court (TEAC) claiming that the delay is due to the absolute impossibility of knowing the existence of the goods.
The claim is dismissed and the taxpayer lodges an appeal with the National High Court. As the sole reason for challenge, it declares the automatic application of the surcharge in the voluntary period (LGT art.27) to be inadmissible, as it is contrary to the principles of the tax system (Const art.31 and LGT art.3).
The National High Court recalls that the surcharges for late declaration are not sanctioning, however, it states that its requirement cannot absolutely dispense with the voluntariness of the taxpayer. That is to say, the circumstances in which the delay has occurred and the willingness of the taxpayer to determine whether or not the imposition of the surcharge is appropriate must be analyzed in each specific case.
After analyzing the facts subject to appeal, it is observed that the taxpayer, after knowing that there were other assets, immediately informs the Administration. Thus, the National High Court understands that this is a taxpayer who wants to comply with the required temporary diligence, and if he does not do so it is because he does not know the existence of the assets, so he cannot be required to behave differently from the one he actually developed.
It therefore considers that, in this case, the penalty with a surcharge contravenes the principles of good faith and legitimate expectations which must govern relations between the administration and the citizens. Furthermore, the principle of interdiction of the arbitrariness of the public authorities prevents decisions from being taken which are not justified and which conflict with the logic of things.
For all these reasons, the National High Court considers the claims of the taxpayer.
Surcharges for late declaration or self-assessment without prior requirement
The payment of surcharges for late declaration without prior requirement, is a material and pecuniary tax obligation that must be fulfilled as a result of the presentation of self-assessments or declarations after the deadline, without prior requirement of the Tax Administration.
The requirements for the requirement of these surcharges are:
- The untimely filing of self-assessments or declarations, regardless of whether, in the case of self-assessments, whether or not the tax debt is paid at that time.
- The realization of this untimely presentation without prior administrative requirement,understood as any administrative action carried out with the formal knowledge of the taxpayer leading to the recognition, regularization, verification, inspection, assurance or settlement of the tax debt.
- In the event of the submission of untimely self-assessments without prior requirement, they must meet certain contentrequirements:
- they must expressly identify the settlement tax period to which they refer;
- they can only contain data relating to that tax period.
If these content requirements are not met, these surcharges do not apply, but the lack of income in time of taxes or payments on account that have been included or regularized by the taxpayer in the extemporaneous self-assessment, constitutes a minor tax violation to which a penalty of 50% of the regularized amount (LGT art.191.1, 2 and 6) corresponds.
The quantification of these surcharges is carried out taking into account the basis on which they are applied and their type.
- a) The base consists of the amount to be paid as a result of the extemporaneous self-assessment or the amount of the settlement derived from the extemporaneous declaration.
- (b) As regards the rate:
- If the declaration or self-assessment is submitted within three months of the end of the established period, a single surcharge of 5% is imposed, without interest for late payment or penalty.
- If the declaration or self-assessment is submitted between three and six months after the end of the established period, a single surcharge of 10% is imposed, without interest for late payment or penalty.
- If the declaration or self-assessment is submitted between six and twelve months after the end of the established period, a single surcharge of 15% is imposed, without interest for delay or penalty.
- If the declaration or self-assessment is filed twelve months after the end of the established period, a single surcharge of 20% is imposed, without penalty. Interest on late payment is required for the period from the day following the end of the twelve months following the end of the period established for the filing of the self-assessment or the declaration until the time when they have been filed.
To encourage entry within the voluntary period, a reduction of 25% of the amount of these surcharges is established when the following requirements are met:
- total income from the amount of the untimely declaration;
- income of the surcharge with the reduction of 25% in term.
This reduction is also applied if at the time of filing the extemporaneous declaration the debt has not been paid but deferment or fractionation has been requested, exclusively if the guarantee consists of guarantee or suretyship insurance.
The reduction of 25% is not contemplated for the cases in which compensation is requested at the time of filing the extemporaneous declaration to settle the amount owed.
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