“The Bill recently approved by the Government to transpose the DAC Community Directive 6 fails to resolve the important technical deficiencies that concurred in the approval of the Directive itself, which raises important problems of legal certainty”. as reported by the Spanish Association of Tax Consultants (I will go).
The Government has made public the Bill that modifies the General Tax Law in transposition of the DAC Directive6 (2018/822 of the Council of Europe).
This modification 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..
The current project incorporates some relevant modifications in relation to the preliminary project that submitted the public information process on 20 June 2019 and on which Aedaf already made the appropriate observations and suggestions for improvement.
Nevertheless, tax advisers continue to influence three fundamental aspects of the project: regulation of professional secrecy, the regulation of the regime of infractions and sanctions and, Finally, the absence of a reference to the exclusion of sanctions in relation to cross-border mechanisms subject to communication of information, made before the approval and entry into force of said transposition rule.
According to Aedaf, the project makes a considerable change in the regulation of the duty of professional secrecy as a waiver of the obligation of information, now clearly configured as such dispenses. Nevertheless, in the opinion of the experts of Aedaf, simply reading the new Additional Provision 24.2 of the LGT incorporated in the project shows that neither one nor the other is respected with the regulation of said professional secrecy and maintains that “the project chooses to restrict the scope of professional secrecy to the so-called ‘neutral advice’ and, also, It also 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 continues to be more restrictive than that provided for in the Directive and does not respect the previous constitutional and legal recognition that our law attributes to the duty of professional secrecy..
Secondly, the project incorporates several novelties in the sanctioning regime compared to that incorporated in the preliminary draft, 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.
Nevertheless, for another, paradoxically, the amount of the sanction is increased, which therefore does not comply with the principle of proportionality.
Finally, Aedaf insist that the project continues “keeping silence” about the impossibility of punishing conduct carried out before the entry into force of the law that is approved after the processing of this bill, so the courts should be, and ultimately the taxpayers, those who must urge compliance with the requirements derived from the principle of legality and criminality in sanctioning matters, that bind not only the courts, but also to the legislator.