Code of Best Practices of Tax Professionals
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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.
But the analysis of the concept offered by the OECD of “cooperative relationship” would be incomplete if it did not include an essential link for the system such as the figure of the social collaborator, whose role as intermediary between the taxpayer and the Administration is submitted with this Code to certain guidelines.
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 fiscal intermediaries being essential at this point. Thus, their work is not limited to acting as a representative of the taxpayer, facilitating knowledge and understanding of their tax obligations and helping to comply with them, but they also establish themselves, thanks to the role of intermediary and advisor, as an important support for the Tax Agency in one of its most relevant functions, which is the prevention of tax fraud.
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 fiscal intermediaries with 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 them. collaborators 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 tax professionals, and that directly affect the generalization of good tax practices by taxpayers with the support and endorsement of these experts.
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 achieve this, it is necessary to ensure that taxpayers and tax intermediaries have a framework that allows knowledge and sharing of the problems that may arise in the application of the tax system since, ultimately, this will result in an improvement in legal security. and in lower compliance costs and will contribute to a reduction in conflict.
Given an attitude of transparency, openness and communication of information on the part of fiscal intermediaries, the conduct of the Tax Administration must be predictable and provide certainty and legal security to taxpayers in making decisions. their tax decisions, which is why both parties in the relationship show interest in transparency in tax matters. Furthermore, tax intermediaries will strengthen their reputational added value as a result of adhering to the Code.
This mutual trust will improve the existing relationship between fiscal intermediaries and the Tax Agency (and by extension taxpayers), with the aim of achieving more efficient management and collection of taxes, as well as significantly reducing fiscal risk by having at your disposal a mechanism to act with the legal certainty that a modern Tax Administration requires.
Finally, the Code of Good Practices for Tax Professionals must have inspiring principles and commitments that must be assumed by tax intermediaries and 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, who demand greater flexibility, transparency and certainty of the tax system to adapt it to the real needs of taxpayers, and in logical consequence , from 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 fiscal and tax advisory services, they can contribute decisively 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 tax intermediaries assume commitments such as those of transparency, responsibility and professional ethics in the development of their functions, directing their activity towards compliance with 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 for Tax Professionals is voluntary, 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 security, reciprocal cooperation based on good faith and legitimate trust.
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Bilaterality . The Code of Good Practices for Tax Professionals includes commitments for both tax intermediaries and the Tax Administration in order to guarantee a balance between the rights and obligations of each of them in the tax field.
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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. Tax intermediaries must play a leading role in detecting and finding solutions to fraudulent tax practices in order to eradicate them and prevent their spread. For its part, the Tax Agency will ensure that administrative precedents are taken into account 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. Tax intermediaries 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 tax intermediaries 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. Tax intermediaries must respect the jurisdiction of the Tax Agency to collect, disclose and retain information when permitted by law, within 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 fiscal intermediaries, through the Associations and Colleges of Tax Professionals, and the Tax Agency, the possibility of obtaining an appointment, especially in unique or more complex cases.
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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.
Certain commitments of the Tax Agency will be effective for tax intermediaries as long as the Addendum to this Code of Good Practices is signed by the Associations and Colleges of Tax Professionals of which they are associates or members.
By Fiscal Intermediaries
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Be adhered to the Code of Ethics, or equivalent instrument, of the Association or College to which you belong.
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Inform clients to whom advisory services are provided of the need to avoid and prevent any approach that involves fraudulent or illegal tax and customs practices.
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Ensure that the actions of their clients are loyal and in accordance with current tax legislation, warning them of the illegality of deceptive, fraudulent or malicious conduct that they detect and not collaborating in its execution.
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Avoid the use of opaque structures in the planning of tax strategies that are used in advising clients. These will be understood as those in which, through the introduction of instrumental companies located in tax havens or territories that do not cooperate with the tax authorities, they are designed with the purpose of preventing knowledge by the Tax Agency of those ultimately responsible for the activities. or the ultimate owners of the assets or rights involved. Likewise, the use of instrumental companies in import or intra-Community operations will be considered opaque structures, even when they are not located in tax havens, constituted or used in order to prevent or hinder the knowledge by the Tax Agency of those ultimately responsible for the operations.
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Prevent and encourage the correction of client behavior aimed at causing significant tax risks. The work to fulfill this commitment will be carried out in accordance with the content of the voluntary compliance manual that is established.
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Within the framework of the procedures in which the tax intermediary demonstrates its status as a person adhered to the Code of Good Practices for Tax Professionals and its willingness to expedite the processing of the procedure and reduce litigation, the tax intermediary will collaborate with the Tax Agency to clarify, as soon as possible, the controversial issues that are revealed within the framework of the inspection procedure, attending to the information and documentation requirements that are requested as quickly as possible, and providing all information that may be relevant to the development of the procedure as quickly and completely as possible.
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Promote relations with the Tax Agency in electronic format, as well as keep your own and your clients' census data updated.
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Disseminate among your clients the use of the instruments provided for in the tax legal system to avoid conflicts.
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Inform the Association or College, respecting the limits imposed by the duty of professional secrecy, of the irregularities detected by it or its clients regarding alleged widespread fraudulent conduct in a sector that may affect the normal functioning of the tax system or competition in the market.
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Participate in ongoing training activities that are necessary to update your technical knowledge.
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Comply with the quality standards established by the Association or College of Tax Professionals to which they belong, using the voluntary compliance manuals that determine the criteria for carrying out their work.
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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Singularize and personalize the attention to tax intermediaries adhering to the Code of Good Practices for Tax Professionals, improving the functionalities of the appointment application.
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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, promoting the use of electronic administration in the relationships of tax professionals and taxpayers with the Tax Agency, 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 fiscal intermediaries, coordinated through the 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 tax intermediaries that voluntarily adhere to the Code of Good Practices for Tax Professionals.
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Analyze the requests for unification of criteria raised by tax intermediaries through the Associations and Colleges of Tax Professionals, when they communicate disparate actions by the Tax Agency in similar procedures.
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Study in the Forum's working group the actions of the Tax Agency communicated by the Associations and Colleges of Tax Professionals that deviate from the commitments of the Code of Good Practices for Tax Professionals and transfer them, where appropriate, to the Plenary Session of the Forum.
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Identify tax returns submitted by tax intermediaries adhering to the Code of Good Practices for Tax Professionals.
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Within the framework of the procedures in which the tax intermediary demonstrates its status as a person adhered to the Code of Good Practices for Tax Professionals and its willingness to expedite the processing of the procedure and reduce litigation, the Tax Agency will provide the tax intermediary, as soon as possible, the knowledge of the facts susceptible to regularization, in order to guarantee that it has at its disposal as soon as possible all the information that will allow it to carry out the evidentiary activity required in each case to defend its interests. Likewise, and whenever the circumstances justify it, the holding of meetings will be facilitated to highlight and clarify relevant issues that may have arisen within the procedure.
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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 tax intermediaries, who 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 tax intermediaries that subscribe to it.
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Accession procedure.
The decision to join the fiscal intermediaries will be communicated to the Tax Agency, and it will be possible to 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 fiscal intermediaries adhere to the Code, provided that its express consent is obtained through the Technical Secretariat of the Forum.
The creation of a logo that identifies fiscal intermediaries 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 who have signed the Addendum to the Code. 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 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 learn about particular situations of tax professionals adhered to the Code, and therefore will not be able to intervene in any tax procedure in progress.