Code of Good Practices of Tax Professional Associations
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INTRODUCTION
The OECD defines the cooperative relationship as “a relationship between the taxpayer and the tax administration based on cooperation and mutual trust between both parties that implies a willingness to go beyond the mere fulfillment of their legal obligations” .
The development of the cooperative relationship involves:
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on the one hand, the simplification and facilitation of voluntary compliance with tax obligations, increasing the legal and operational security of taxpayers and tax professionals and Customs Agents and Customs Representatives
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on the other hand, cooperation in the prevention of tax fraud.
The Associations and Colleges of professionals are a manifestation of the principle of organic representation enshrined in the Spanish Constitution that is made effective through citizen participation in legislative tasks and in other functions of general interest. These institutions receive protection as soon as they satisfy social demands of general interest, so that they can participate effectively in the establishment and improvement of mechanisms to detect and satisfy them.
In general, professional Associations and Colleges are called to fulfill an essential function in our society aimed, among others, at organizing the practice of professions, defending the professional interests of associates and members, providing care to consumers. and users of the respective professional services and participation in the preparation and modification of legal texts.
In the fiscal field, its work reaches an even greater dimension in line with the weight of taxes in the Spanish economy, where they are an important part of public income that serves to cover the public expenses incurred by the country. and guarantee its sustainability. To achieve these objectives, taxpayers must comply punctually and correctly with their tax obligations, and it is up to the Tax Administration to collect - in accordance with legal provisions - the appropriate amount to be able to guarantee that citizens receive the aid and services expected from society. , as well as preventing and combating fraud, evasion and tax avoidance.
The proper functioning of the tax system depends largely on ensuring a balance between the rights and obligations of taxpayers and the Tax Administrations, with the role played by the Associations and Colleges of Tax Professionals being essential at this point.
Aware of the important role of these fiscal intermediaries, a Forum for dialogue between the Tax Agency and the Associations and Colleges of Tax Professionals was born 8 years ago in which, among other objectives, the dissemination of the Agency's criteria is carried out. Tax in the application of taxes and the analysis of regulatory modifications and promotes the role of tax professionals as social collaborators in the application of taxes and the social commitment of these professionals to contribute to the rejection by taxpayers of the fraudulent behavior.
This Forum has represented an important advance in order to transform the traditional position of confrontation between the taxpayer and the Tax Administration, into a cooperative relationship capable of adopting joint solutions in defense of a higher goal such as the common interest. As a result of this objective, and with the intention of delving into this idea, it is necessary to provide this instrument with a Code of Good Practices for Tax Professionals in which a set of principles and commitments are established to improve the communication process between the Associations and Colleges of Tax Professionals and the Tax Agency.
Therefore, the objective of this document is to propose and propose lines of action that allow progress in the development of the cooperative relationship model between the Tax Agency, and the Associations and Colleges of Tax Professionals, and that directly affect the generalization of good tax practices by taxpayers with the support and endorsement of these expert groups.
In this sense, good tax practices are the set of principles, values, norms and guidelines that define good behavior of fiscal intermediaries of taxpayers with respect to the tax obligations of the latter. To do this, it is necessary to provide taxpayers with a framework that allows them to understand and share the problems that may arise in the application of the tax system since, ultimately, this will result in an improvement in legal certainty and fewer compliance costs and will contribute to a reduction in conflict.
The conduct of the Tax Administration must be predictable and provide certainty and legal security to taxpayers in making their tax decisions, hence both parties in the relationship show interest in transparency in tax matters. Furthermore, Associations and Colleges will reinforce their reputational added value as a result of adhering to the Code.
This mutual trust will improve the existing relationship between the Associations and Colleges of Tax Professionals (and by extension the taxpayers) and the Tax Agency in order to achieve more efficient management and collection of taxes, as well as significantly reducing risk. tax by having at its disposal a mechanism to act with the legal certainty that a modern tax system requires.
Finally, the Code of Good Practices of Professional Associations and Colleges must have inspiring principles and commitments that must be assumed by them and by the Tax Agency.
II. PRINCIPLES AND COMMITMENTS
The Tax Agency's effort to improve the cooperative relationship must be aimed at establishing more agile and predictable communication channels with tax professionals, which will undoubtedly make it possible to implement principles as important as legal certainty, trust and mutual agreement. This need has been highlighted on several occasions by the members of the Forum of Associations and Colleges of Tax Professionals and the Associations and Colleges to which they belong, who demand greater flexibility, transparency and certainty in the tax system to adapt it to the needs. real interests of taxpayers, and, logically, of tax professionals.
On the other hand, the Forum was created with the intention of promoting and facilitating the voluntary compliance of taxpayers' tax obligations, promoting the work of tax professionals, who play a fundamental role as social collaborators in the application of taxes. By providing these professional advisory services, they can decisively contribute to the rejection by taxpayers of fraudulent behavior and aggressive tax planning practices that illegally tend to avoid or reduce taxation in Spain. In this sense, it is interesting that Professional Associations and Colleges assume commitments such as those of transparency, responsibility and professional ethics in the development of their functions, directing their activity so that their members recommend the compliance with the corresponding tax obligations by taxpayers as one more aspect in the design and accounting representation of economic operations and rejecting approaches to minimize the tax cost by its clients that are artificial or clearly contrary to tax regulations. For its part, the Tax Administration must guarantee the maintenance of a permanent communication channel that serves to offer legal criteria that provide legal security and certainty.
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Beginning
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Voluntariness . Adherence to the Code of Good Practices of the Associations and Colleges of Tax Professionals is voluntary and individual, as it arises from the free conviction of assuming a series of recommendations aimed at improving the application of our tax system through increasing legal certainty. reciprocal cooperation based on good faith and legitimate trust.
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Bilaterality . The Code of Good Practices of the Associations and Colleges of Tax Professionals includes commitments for both the Associations and Colleges of Tax Professionals and the Tax Administration with the aim of guaranteeing a balance between the rights and obligations of each of them in the field. tax.
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Transparency and trust , which involves the delivery of information beyond legal requirements, without prejudice to professional secrecy and the obligation of secrecy. Associations and Colleges of Tax Professionals must play a leading role in detecting and seeking solutions to fraudulent tax practices in order to eradicate them and prevent their spread. For its part, the Tax Agency is obliged to take into account administrative precedents in its actions and will ensure the uniform application of the Tax Agency's criteria, for which their disclosure plays an essential role.
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Mutual agreement on the scope and content of the information provided.
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Collaboration. The effectiveness of the tax system depends on the conduct of taxpayers and tax intermediaries, such as their representatives, and the Tax Agency. Professional Associations and Colleges must collaborate so that the information that taxpayers must provide correctly reaches the Tax Agency. For its part, the Tax Agency must make available to these Associations and Colleges the necessary information and explanation that may allow the taxpayer to correctly comply with their tax obligations.
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Confidentiality and privacy of the information provided. The Associations and Colleges of Tax Professionals must respect the competence of the Tax Agency to collect, disclose and preserve information when permitted by law, within the respect of the limits imposed by the duty of professional secrecy. For its part, the Tax Agency must protect the personal information to which it has access, without disseminating it to third parties, unless provided for by law.
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Ease of communication , through the establishment of an online channel that allows streamlining the relationship between the Associations and Colleges of Tax Professionals, and the Tax Agency .
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Commitments
As noted above, the Code of Good Practices for Tax Professionals implies assuming a series of commitments by the parties.
On behalf of the Associations and Colleges of Tax Professionals
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Have a Code of Ethics for the tax advisory activity of voluntary adhesion for its members, or equivalent instrument, which must be accessible on the website of the Association or College.
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Channel the questions to be asked to the Tax Agency and disseminate among its associates the general criteria and principles maintained by the Tax Administration.
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Promote among its associates relations with the Tax Agency in electronic format, as well as the use of existing instruments in the tax legal system to avoid conflicts.
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Provide ongoing training and updating of technical knowledge to its associates.
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Establish quality standards for the services provided by its associates. They must have voluntary compliance manuals that determine the work criteria and the recommendations of the associates to their clients, opposing conduct contrary to the legal system, among others: carrying out double accounting, filing of legal entities, opacity of corporate structures, use of dual-use software, making cash payments that exceed legal limits, fictitious tax relocation operations, fraudulent use of bankruptcy processes, use of structures aggressive tax planning that illegally tends to avoid or reduce taxation in Spain, such as the improper use of hybrid instruments or the deduction of expenses for the purchase of securities with leverage when it is proven that the main purpose of the operation is to generate financial expenses that are tax deductible.
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Transfer to the Tax Agency incidents detected when a significant legislative change is promoted, as well as proposals to improve general actions of the Tax Agency.
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Promote periodic meetings with the Tax Agency, to evaluate the business economic reality and the underlying problems in compliance with its tax and customs obligations, its associated indirect costs and the unfair competition that could occur in certain economic sectors due to non-compliance with its tax obligations. .
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Provide the Tax Agency, respecting the limits imposed by the duty of professional secrecy, with irregularities detected by the associates when they affect the normal functioning of the tax system or competition in the market, offering evidence of the irregularities when available (cases of fraud).
By the Tax Agency
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Establish a communication channel on the Tax Agency website, through which the Associations and Colleges of Tax Professionals can formulate questions under the terms established between both parties.
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Promote the improvement of procedures in order to avoid in-person verification of documentation and avoid trips to the Tax Agency offices.
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Without prejudice to the applicable regulations regarding the interpretation and qualification of tax and customs regulations, and the work of providing information and assistance to taxpayers, the Tax Agency will publish the criteria it applies in its control procedures, especially when significant legislative changes occur, as long as they can be applied generally.
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Improve the application of the tax system, reducing indirect tax burdens and promoting the use of new technologies, as well as promoting the use of the instruments established by the tax legal system aimed at reducing conflicts.
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Guarantee, in the activity of applying the tax system, the full exercise of the rights of taxpayers, as well as that of professionals and other social collaborators in the exercise of their profession and their legally approved regulatory standards.
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Participate in courses or conferences on topics of interest to Associations and Colleges of Tax Professionals and Customs Representatives.
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Organize dissemination and communication campaigns specifically aimed at Associations and Colleges of Tax Professionals adhered to the Code of Good Practices for Tax Professionals, and collect their content in a section of the Tax Agency website.
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Recognition of Associations and Colleges of Tax Professionals that voluntarily adhere to the Code of Good Practices for Tax Professionals.
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Jointly establish communication strategies with the Associations and Colleges of Tax Professionals aimed at compliance with the tax regulations, as well as the development of an educational culture in the tax field.
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Analyze the requests for unification of criteria raised by the Associations and Colleges of Tax Professionals, when they communicate disparate actions by the Tax Agency in similar procedures.
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Compliance guarantee.
Both the Tax Agency and the Associations and Colleges of Tax Professionals that subscribe to this Code assume its principles and the commitments that it entails. For this reason, it is considered appropriate to specify certain practices that must be carried out by both parties and that allow compliance with it to be guaranteed.
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Verify the dissemination and application of the good practices of the code in the internal and external actions developed by the Associations and Colleges and by the Agency.
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Inform the Forum's secretariat of any actions or conduct of which there is evidence that are not in accordance with the principles and good practices included in the Code and that could lead to non-compliance. The procedure for processing these communications will be developed through an Annex to this Code.
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III. ADHESION TO THE CODE OF GOOD PRACTICES FOR TAX PROFESSIONALS
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Subjective scope of application .
The Code of Good Practices for Tax Professionals is based on the free adherence of each of the Associations and Colleges of Tax Professionals, which voluntarily assume the principles, commitments and recommendations contained therein.
This Code has been prepared and approved by the Forum of Associations and Colleges of Tax Professionals to promote a reciprocally cooperative relationship between the Tax Agency and the Associations and Colleges of Tax Professionals that subscribe to it.
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Accession procedure.
The decision to adhere to the Code of Good Practices of Tax Professionals by the Associations or Colleges of Tax Professionals must be formalized through an agreement that will be communicated to the Tax Agency through the corresponding Professional Association or College. In the same way, they may communicate their withdrawal at any time.
Adherence and withdrawal must be to the entire Code, and partial adherence to or withdrawal from specific sections of the Code is not admissible.
The Tax Agency may inform on its website which Associations or Colleges of Tax Professionals adhere to the Code, provided that it obtains the express consent of the affected Association or College, through the Technical Secretariat of the Forum.
The creation of a logo that identifies the Associations and Colleges of Tax Professionals that have adhered to the Code will be studied.
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Monitoring commission.
The Plenary Session of the Forum of Associations and Colleges of Tax Professionals will determine the creation of a Monitoring Commission for the application of the Code of Good Practices for Tax Professionals, composed of six members, appointed in equal parts by the Tax Agency and the Associations and Colleges. of Tax Professionals participating in the Forum. The members of the Monitoring Commission will be appointed annually, with the representatives of the Associations and Colleges of Tax Professionals rotating. The status of President will fall to one of the members appointed by the Tax Agency and that of Secretary to a member from among those appointed by the Associations and Colleges of Tax Professionals.
The agreements of the Monitoring Commission will be adopted by consensus among its members.
The Forum of Associations and Colleges of Tax Professionals is the headquarters in which the Tax Agency and the Associations and Colleges of Tax Professionals must study and agree on the inclusion of new matters in the Code and the interpretation of its recommendations. It is a primary purpose of the Monitoring Commission to present for its consideration both the questions of interpretation that it considers appropriate, as well as the opportunity to address new matters, without prejudice to any other initiatives that may help the materialization and implementation of the Code. In particular, the Monitoring Commission will establish the treatment practices in cases of non-compliance with the commitments of the Code.
The Monitoring Committee will meet generally once a semester, without prejudice to the fact that it may do so as many times as is considered necessary by the representation of the Tax Agency or the Associations and Colleges of Tax Professionals.
The actions of the Monitoring Commission will be guided by the principles of transparency, mutual trust, good faith and loyalty that govern the Code of Good Practices for Tax Professionals.
All data, reports or background information of any nature presented to the Monitoring Committee or obtained by it in the performance of its functions will be confidential, and its members will be obliged to maintain the strictest and complete secrecy regarding them.
The Monitoring Commission will not be able to hear about particular situations, and therefore will not be able to intervene in any tax procedure in progress.