Tax Compliance
From the reform of the Penal Code in 2010, and as stated in article 31.1.bis, any legal person can be criminally responsible for crimes committed on behalf of it or its legal representatives and said acts can be attributable to the organization itself.
He risk analysis, in favor of regulatory compliance, has become the new central axis of every company where they must keep in mind what their threats are in the development of their economic activity and, in addition, they must be able to stop them through the implementation of measures that eliminate or mitigate this risk. And you have to be able to prove it.
In tax matters, Compliance is not trivial. Organizations, regardless of their economic activity, are subject to hyper-fiscal regulation (in constant modifications) at the local/municipal/foral, provincial, regional and state levels, as well as in the economic sphere in which they are located. Furthermore, due to the development of new technologies and the almost instantaneous exchange of data between institutions at different levels, state agencies have fiscally relevant information on the taxpayer in all areas.
This causes, respectively, an increase in non-compliance with tax matters on the part of the businessman due to the extensive regulation in this matter and, in turn, increases the probability of risk materialize through the corresponding administrative and even criminal sanction, which can put an end to the life of the organization itself.
Thus, the Tax Compliance It is the branch of regulatory compliance that comes to identify, advise, alleviate, and control possible risks in tax matters through the implementation of measures, practices, protocols, policies, etc. that help mitigate and control these risks.
From a national point of view, we can highlight the Code of Good Tax Practices issued by the Tax Agency and which lays the foundations to strengthen cooperation and trust between the agency itself and the taxpayer and which aims to provide legal certainty and transparency in the application of the tax law.
- UNE 19602 Compliance tax.
UNE 19602
On the other hand, the Spanish Association for Standardization and Certification (AENOR) issued in matters of fiscal and tax Compliance the UNE 19602 (access the press release). This UNE standard is the standard in charge of helping organizations manage and prevent tax risks through a culture of compliance. Thus, the most notable points of UNE 19602 that are identified therein are:
- Have a policy compliance tax approved by the governing bodies that minimizes the exposure of tax risks.
- Train and raise awareness of the organization's personnel regarding the identified tax risks.
- Establish financial and non-financial controls over your processes or even over other entities.
- Establish communication channels for non-compliance or well-founded suspicions of non-compliance with the requirements, guaranteeing that the informant will not suffer retaliation.
- The risks and contingencies to take into account, according to UNE 19602.
Since the regulation of UNE 19602 itself, risk is divided into two categories, although it indicates that the risk classification must be carried out based on each organization, due to the specialty of each situation and taking into account the place of operations, affected parties, applicable regulations, etc. Thus, the risk is classified into:
- The risk of procedure. This risk may arise due to fiscal inefficiency in the event of a possible management and control procedure in relation to the organization's fiscal obligations.
- The risk of interpretation. This risk may arise due to the discrepancy regarding the interpretation of the rule by the Tax Agency or the courts.
Contingencies
Thus, the contingencies to take into account, according to the UNE itself, are:
- Failure to present or present tax self-assessments that contain errors, as a consequence of whose correction they generate a higher tax rate.
- The lack of presentation or the presentation of self-assessments prepared from a interpretation of tax regulations applicable that does not coincide with that maintained by the Tax Administration or by the Courts of Justice.
- The generation of a Tax debt when carrying out operations that may be regularized on the basis of the corresponding anti-abuse regulations that are applicable.
- The assumption by the organization of tax debts of third parties due to legal obligation.
- He non-payment of tax debts that may give rise to the commission of administrative tax infractions, whether or not linked to tax quotas.
- The commission of crimes against the Public Treasury that are criminally attributable to the organization, and
- In general, any non-compliance or defective performance of a requirement derived from a legal-tax relationship.
- The evaluation and control of risks.
To control and mitigate these risks, a risk assessment to check what the probability and impact could be if it materializes and thus take the necessary measures to mitigate or suppress it.
Furthermore, UNE 19602 itself establishes two types of controls:
- The financial controls, which are those that would be closely related in the financial field.
- The non-financial controls, which are those that can occur in the development of your economic activity and that can have direct implications in the financial field.
- He Tax Compliance Officer.
Tax Compliance Officer
He Tax Compliance either Tax Compliance Officer is the person in charge of the company, well assumed structurally in the organization itself; or, externally through expert professionals in the field who will provide all the necessary instruments in tax matters to control the elements of this area, both in regulatory compliance itself, and in the way of relating to the Tax Agency. , in favor of a greater corporate culture on the part of the organization.
In conclusion, the tax area is one of the most complicated and, at the same time, most important of any organization, since every company must comply with tax regulations by virtue of being one and regardless of the economic bias in which it works. Thus, the Tax Compliance It is presented as the tool that will provide regulatory compliance to the organization so that it is aligned not only in the purely legislative sphere, but also from the ethical point of view and, in addition, and with the way of relating to its employees. stakeholders, thus gaining added value, reputation and corporate culture.
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