Everything you need to know about binding tax consultations

The tax inquiries They are one of the remedies against the uncertainty that the complexity of the tax system can generate. Furthermore, they have the advantage of being responded to by the Administration and, in general, having binding effects.

In this way, the binding queries to the General Directorate of Taxes reinforce legal security. With this, they contribute to economic agents being able to be a little clearer about the legal consequences of their actions.

Who can make written tax queries?

First, the law empowers obligated to carry out tax queries. This includes the taxpayers of the different taxes, but also other types of taxpayers such as, to give two examples, the withholders or successors of a deceased taxpayer.

Secondly, it is expected that they may also formulate them, when they refer to issues that affect the generality of its members or associates:

• Professional colleges.
• Official cameras.
• Employer organizations.
• Business associations and professional organizations.
• Unions.
• Consumer associations.
• Associations or foundations that represent the interests of people with disabilities.
• Federations that bring together the aforementioned organizations or entities.

This means that, on the one hand, for these organizations to be able to carry out binding consultations, they must affect the generality of their members and not to a specific groupfrom them. On the other hand, it must affect them themselves. For example, a professional association can consult on some tax aspect related to its members, but not to its clients.

Finally, it is always possible to ask questions through a representative who may be, for example, a tax advisor or lawyer for your client.

What can a tax consultation be about?

At the time, the laws included a set of matters within which we could make queries whose response was binding. Currently, there is no such restriction, but we can formulate them on any aspect related to the tax regime, classification or qualification that corresponds to us.

What are the effects of tax consultations?

The main purpose pursued when formulating a tax consultation is not only to resolve tax doubts, but also link to the Administration. However, there are different levels in which we can analyze the effects of the consultation.

The effects of the answers for the consultant

The consultant may act, if he considers it appropriate, in accordance with the criteria contained in the response. It knows that the bodies and entities in charge of applying taxes are bound by it. This fundamentally includes inspection, management and collection activities.

Therefore, in principle, if, for example, you submit a self-assessment in accordance with the criteria contained in the response, they could not carry out an inspection in which a higher amount was settled nor could they impose a penalty. He has acted in accordance with the criteria that binds the Administration.

However, it may happen that the Administration considers that circumstances have changed. For example, there could have been change in regulations or jurisprudence. Another possibility is that it is considered that the circumstances of the case are different from those included in the consultation letter.

Nevertheless, the consultant may not agree with the answer. In that case, you are free to act according to your criteria, since the response only binds the Administration.

Obviously, if you act in accordance with a criterion other than that indicated in the response, you are exposed to the Administration acting in accordance with it. For example, you could suffer an unfavorable inspection. However, you could continue to defend your opinion by presenting administrative appeals (such as an appeal for reconsideration or an economic-administrative claim) and, where appropriate, judicial appeals in the contentious-administrative jurisdiction.

The effects for the Administration

In principle, the administration (with the exception referred to economic-administrative courts) should apply the criteria contained in the responses to binding tax queries. This means, for example, that if they carry out an inspection, they should not interpret the rules differently than what is specified in the response.

However, it can be justified a change of criteria for various reasons. Obviously, the first is that the law has changed. It has also been able to change jurisprudence. Furthermore, it must be taken into account that a change in circumstances may have occurred since the moment of the response.

The effects for other obligors

It frequently happens that, when faced with a tax doubt, we go to previously issued binding tax inquiries. In this way, people and entities other than the person who consulted can form a criterion.

In these cases, the Administration must apply the criteria contained in the written tax consultations to any obligor, provided that there is identity between facts and circumstances of said obligor and those included in the response to the query.

Effects before the economic-administrative courts and the courts of justice

The economic-administrative courts and courts of justice are not bound by the responses. This implies that they can understand that the rules must be applied according to other criteria. However, if they deviate from the criterion of binding consultation, it must not be to resolve in a more unfavorable way for the obliged party.

How is a tax query formulated?

For make a tax inquiry We must take into account some aspects.

The means by which tax queries can be made

It should always be done written. We can make use of the electronic media, if we prefer. However, this option of choosing electronic means or not is not possible for certain obligated parties, since the law requires the following to always interact with the Administration by electronic means:

• Legal entities.
• Entities without legal personality.
• Those who carry out a professional activity for which mandatory membership is required, for the procedures and actions they carry out with the Public Administrations in the exercise of said professional activity. In any case, this group will be understood to include notaries and property and commercial registrars.
• Those who represent an interested party who is obliged to interact electronically with the Administration.
• Employees of Public Administrations for the procedures and actions carried out with them due to their status as public employees, in the manner determined by regulation by each Administration.

The CT model

It's about a form which we must fill in with the data of the presenter and, in the event that he acts as a representative, of his client, together with the center to which he is addressing (General Directorate of Taxes) and the matter (initiation of the procedure for submitting a tax consultation to the Directorate General of Taxes). In addition, we must attach the form supplementary data required tax query and any attached file that we consider appropriate to add to resolve the query.

On the other hand, if we want in addition to filling it, send it electronically, we must have an electronic DNI or a recognized X509.3 certificate.

The minimum content of the query

The consultation must include, at least:

to) Name or company name or full name, tax identification number of the taxpayer and, where applicable, the representative.

In the event that you act through a representative, you must provide the documentation accrediting representation.

b) Express statement of whether or not a request is being processed at the time of submitting the document. economic-administrative procedure, appeal or claimrelated to the corresponding tax regime, classification or qualification raised in the consultation, unless it is formulated by the entities referred to in article 88.3 of Law 58/2003, of December 17, General Tax.

c) Object of the consultation.

d) In relation to the issue raised in the consultation, the background and circumstances of the case will be expressed clearly and to the necessary extent.

e) Place, date and signature or accreditation of the authenticity of your will expressed by any legally valid means.

Who is competent to answer a tax query?

Within the scope of the State's powers, it is General Directorate of Taxes. Meanwhile, in the case of the CCAA, the corresponding bodies are assigned the initiative for the elaboration of provisions in the tax order, their proposal or interpretation. In that of Local Entities, the entity that exercises the functions of management, liquidation, inspection and collection of local taxes.

Thus, if we have a question related to state regulations, we will contact the General Directorate of Taxes. But it may happen that in a certain tax state regulations coexist with regional regulations or with a tax ordinance, for example. In those cases, We will consult the Administration of the area in which the standard was approved. We will also consult the corresponding regional bodies in the event that the issue is related to your own taxes.

The time to formulate a tax query

We can do them before the end of the term established for the exercise of rights, the presentation of declarations or self-assessments or the fulfillment of other tax obligations. There is no provision, for example, for the possibility of submitting a query in order to know how we would have to declare in a complementary self-assessment something that we did not declare at the time.

Even if the consultation is carried out within the deadline, the response will not have binding effects in cases in which questions related to the purpose or processing of a request are raised. procedure, appeal or claim initiated previously.

Furthermore, it must be taken into account that the presentation and answering of queries will not interrupt the established deadlines in tax regulations for compliance with tax obligations. Therefore, if we have, for example, to present a certain model before a specific date, the deadline is not extended for having submitted a query related to the presentation of the model.

The international aspects of tax consultations

Tax queries can be made about tax doubts related to permanent establishments of non-resident entities or cross border operations. The difference is that, in these cases, the query is required to be accompanied by a set of additional data than usual.

What happens if the query is not formulated correctly?

If we send a query that does not meet the minimum requirements, the Administration will notify us that it does not comply with them. It will give us a period of 10 days to correct defects. If we do not meet that requirement, the query will be archived without us obtaining the binding response from the Administration that we wanted.

Another possibility is that the problem arises not from the query itself and the data contained in it, but from the time to present it. This would be the case, for example, if we consult on how a certain operation should be declared after the deadline for doing so has expired. In that case, they would send us a notification telling us, without further ado, that the query is not supported.

What is the procedure for the response?

The Administration has a period of six months to answer us. However, the fact that this period of time passes without a response does not mean that we can accept the criteria that we could have expressed in the consultation letter, nor present any kind of appeal.

Unfortunately, delays in response are more common than desirable. Precisely for that reason, the Ombudsman Actions began in October 2017 to find out the reasons.

Meanwhile, the Administration has time not only to study the consultation, but also to require additional documentation or information that you consider necessary. In addition, you may also request reports that are deemed relevant from other management centers and organizations.

Can binding tax consultations be appealed?

No. What can be appealed are the acts of the Administration in which the criteria contained in the response have been applied.

Tax query databases

The General Directorate of Taxes provides us with access to the content of the answers to the queries in two databases. On the one hand, there is that of the own binding queries.

On the other hand, there are answers to General inquiries, so called because their criteria are not binding. In general, they are consultations that either predate the reform that allowed the effects of tax consultations to be widely extended, or they are consultations that refer to groups within which there are people or entities involved in some procedure at the time they were formulated. the consultation.

What are the most important alternatives to tax consultations to resolve tax doubts?

The first is inform ourselves. It will be simpler or more complex, fundamentally, depending on our tax knowledge. We can resort, mainly, to regulations. It is also useful to consult jurisprudence, administrative doctrine, specialized books and magazines, informative content, digital content of all kinds, etc.

The second is to resort to Tax Agency assistance telephone numbers. The response will be faster and less formal, but we must not forget that it is not binding.

The third option is to turn to our tax advisor. It has the advantage that it is a professional who can reveal new doubts and solutions. In any case, you can analyze our entire tax situation and planning more as a whole.

In any case, tax consultations are a very important reference. And they are not only because of their binding effects. They are also due to the presentation of criteria on specific cases. The theory of the norm is transferred to the reality of the taxpayers. This process helps better understand how taxes work.

Fountain: SAGE