Minutes of the meeting
Large Companies Forum
PLENARY MINUTES 1/2016
MINUTES OF THE PLENARY MEETING OF THE LARGE BUSINESS FORUM
HELD ON JUNE 28, 2016
Vice-President of the Large Companies Forum
General Director of the State Tax Administration Agency
Mr. Santiago Menéndez Menéndez
Members representing the Tax Agency
Director of the Tax Management Department
D. Rufino de la Rosa Cordón
Director of the Collection Department
Ms. Soledad García López
Director of the Department of Aduanas and Excise Duties
Mrs. Pilar Jurado Borrego
Central Delegate of Large Taxpayers
Mr. Ignacio Huidobro Arreba
Deputy Director General of Legal Regulation of the Department of Financial and Tax Inspection
Mr. Marcos Álvarez Suso
Members representing Large Companies
ACERINOX
General secretary
Mr. Luis Gimeno Valledor
ACS
Head of the Corporate Tax Department
Mr. José Miguel Moreno Pérez
AMADEUS IT HOLDING
Deputy Secretary of the Board of Directors
Mr. Jacinto Esclapés Díaz
BANCO SANTANDER
Tax Advisor
Mrs. Carmen Alonso Peña
BANKIA
Tax Advisory Director
Mr. Juan José Lagares Gómez-Abascal
BBVA
Tax Department
Mr. Alberto Marzal Cervantes
LA CAIXA
Tax Advisory Director
Mr. Manuel Alfonso García Rodríguez
CEPSA
Fiscal Director
Mr. Alberto Martín Moreno
COFARES
Advisor Governing Council
Mr. Luis Valdeolmos González
EL CORTE INGLÉS
Tax Director
Mrs. Pilar Fernández Medina
ENDESA
Tax Affairs Manager
Mrs. María Muñoz Viejo
FCC
Director of the Tax Area
Mr. Daniel Gómez-Olano González
GAS NATURAL FENOSA
Tax Director
Mr. Jaume Menéndez Fernández
GENERALI ESPAÑA
CFO
Mr. José García Naveros
IBERDROLA
Fiscal Director
Mr. Fernando Arias Coterillo
IBERIA
Head of Tax Consulting
Mrs. Elena Sánchez Llorente
INDITEX
Director of the Tax Department
Mr. Andrés Sánchez Iglesias
MAPFRE
Tax Advice Director
Mr. Antonio Lafuente González de Suso
MERCADONA
Tax Division
Mrs. Irene Barbudo Puchades
NORFIN HOLDER
Fiscal Director
Mr. José Antonio Gibello Saiz
RENAULT ESPAÑA
Director of Tax and Customs Affairs
Mr. Félix Ruiz Madarro
REPSOL
General Economic and Fiscal Director
Mr. Luis López-Tello y Díaz-Aguado
SEAT
Tax Director
Mr. Francisco Javier Baulenas Setó
SIEMENS
Tax Director
Mrs. Ana Mª Moreda Galante
TELEFÓNICA
Latin America Tax Director
Mr. Miguel Iglesias San Martín
VODAFONE
Tax Advice Director
Mr. Javier Viloria Gutiérrez
Technical Secretariat of the Large Companies Forum
Technical secretary
Mr. Ángel Rodríguez Rodríguez
In Madrid, on June 28, 2016, the twelfth plenary session of the Large Business Forum is held, attended by the aforementioned people, and in accordance with the following
AGENDA
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Session opening
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Approval of the minutes of the meeting held on November 2, 2015
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Large Companies Forum: Current situation
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Results of the different working groups of the Forum
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Next call
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Other considerations, requests and questions
1. Session opening
The session is opened by the General Director of the State Tax Administration Agency, Mr. Santiago Menéndez Menéndez, who, after apologizing for the absence of the Secretary of State for Finance and President of the Forum, Mr. Miguel Ferre Navarrete, who due to unavoidable commitments cannot has been able to attend, welcomes the attendees and thanks them for their presence in this Forum and their collaboration with the Tax Agency in achieving the purposes entrusted to it. Likewise, it ratifies the commitment of the Tax Agency with this Forum to work together in the search for greater cooperation, transparency and trust in the relations between the Tax Administration and Large Companies.
2. Approval of the minutes of the meeting held on November 2, 2015
Mr. Santiago Menéndez gives the floor to the head of the Technical Secretariat of the Forum, Mr. Ángel Rodríguez Rodríguez, who points out that the minutes of the 11th session of the Plenary Session of the Forum were sent to the members of the Forum and adds that having received no observations and If there were not any at this time, it would be definitively approved. Since no observations were made by those present, the minutes of the plenary session of November 2, 2015 are declared definitively approved.
3. Large Companies Forum: Current situation
The General Director of the State Tax Administration Agency, Mr. Santiago Menéndez Menéndez, briefly presents the work carried out in the different Working Groups during the first half of 2016.
Working Group for Analysis of Tax Regulations and Reduction of Conflict
The Director indicates the most relevant issues that have been analyzed within this Working Group, which has held a meeting during this semester:
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Deductibility of late payment interest . The Administration's effort to provide legal certainty and clarify administrative doctrine is highlighted.
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Doctrine of proper acts . Based on a note prepared by the Tax Agency, on which the Group companies had made observations, the attempt was made to establish some references (unequivocal and unflawed will of the Administration, need to motivate the administrative act in the event of a change in criteria). and the temporal scope of the effects of the administrative act) that generate stability and certainty and reduce litigation as much as possible.
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Cooperative compliance in the field of VAT . Based on the report prepared by the VAT FORUM of the European Commission (meetings between tax administrations and large business associations), the aim is to obtain the opinion of the members of the Forum, which is why the Tax Agency assumed the commitment to disseminate the text and , if applicable, the creation of a working group if it is of interest to the companies in the Forum.
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In the field of international taxation the progress made in this area is reported.
BEPS , regarding the legal value of their actions, and the establishment of information obligations at the community level.
Excise Working Group
The Director points out that this Working Group has met on one occasion during the first half of 2016, and the issues discussed were the following:
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Activity and establishment code (CAE) necessary so that the beneficiaries of the super-reduced rate of natural gas can prove their right.
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Treatment of losses in the Coal Tax: It was pointed out that, although the Special Tax Law does not expressly establish any exemption in this regard, it is contemplated in the regulations of the electricity sector (1%).
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Other matters, such as incidents in supplies to deceased final consumers, the scope and enforceability of the power of representation of the people who attend the Intervention, the access of operators to a database of the territorial records of Special Taxes and the digitization of documents and their validity.
Cooperative Relationship Working Group
The Director explains that this Working Group has held two meetings, in which the following topics were discussed:
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Organization and content of the meeting/day with companies adhering to the Code of Good Tax Practices.
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Analysis and assessment of the actions to be carried out in relation to the Agreement of the Large Business Forum, of November 2, 2015, an attempt is made to satisfy doubts about implementation, effects and use of it. will give to the information voluntarily provided by companies.
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Study of the conditions of application of the Agreement on strengthening good practices of corporate tax transparency, trying to establish guidelines for the submission of voluntary information to be provided by companies to the Tax agency.
Mr. Santiago Menéndez continues to highlight the progress achieved in cooperative relations and the unequivocal will of the Tax Administration to continue advancing in this matter.
Next, the Director General gives way to the different speakers who will dedicate their interventions to presenting the conclusions of the different Working Groups.
4. Results of the different working groups of the Forum
Working Group for Analysis of Tax Regulations and Reduction of Conflict
Mr. Marcos Álvarez Suso, Deputy Director General of Legal Regulation of the Department of Financial and Tax Inspection, after apologizing for the absence of the Director of his Department, Mr. Luis Mª Sánchez González, who is currently assisting the Fiscal Affairs Committee of the OECD , goes on to give an account of the work carried out in this Group which, during this first semester, has met on one occasion, fundamentally addressing four topics. Firstly, the representatives of the Forum in the Working Group were informed of the situation regarding the deductibility of late payment interest in Corporate Tax, produced by settlements derived from tax application procedures. He pointed out that until the entry into force of Law 27/2014, both administrative doctrine and the jurisprudence of the Supreme Court established their non-deductibility. With the entry into force of the new Corporate Tax Law, the established thesis is the deductibility of said interests.
Mr. Marcos Álvarez continued, indicating that the second issue discussed in the Working Group was that of the application of the doctrine of proper acts. He pointed out that the Tax Agency prepared a working document that was the subject of observations by the companies participating in the Group regarding various aspects of it; among them, the tax strategy regarding anti-abuse by the Tax Agency and against aggressive tax planning. The Deputy Director General added that this specific issue had to be highlighted as being especially complicated, since it was the subject of constant jurisprudential evolution that forces the Tax Agency to adapt, so it was not possible to establish fixed criteria. He pointed out that the Tax Agency is aware of the importance of this issue, which particularly affects the situation of verifications of medium and large companies and, especially, all subsequent obligations, such as leases, loan contracts, amortizations of assets, etc. Mr. Marcos Álvarez adds that after the Group meeting, the business representation therein sent a proposal to continue advancing matters; that, on this matter, meeting points could be found and, specifically, on the consideration of tacit acts, the effects that the carrying out of the inspection action of general scope may have and the distinction between imperative and discretionary acts raised in the working document prepared by the Tax Agency. Mr. Marcos Álvarez reiterates the will of the Tax Agency to establish channels of communication and dialogue to seek meeting points. He pointed out that very practical questions arose in the Working Group, such as, for example, the effects that the fact that a certain operation had been the subject of express instruction in the initial verification should have, on which he saw it feasible to find meeting points. However, he pointed out that in other aspects of the doctrine of own acts it was more difficult to find a clear and general meeting point, since if the jurisprudence changes, the position of the Tax Administration must also change. Finally, on this topic, he added that further debate is necessary within the Working Group and to try to advance the points that coincide between both representations, before preparing and disseminating a document with the criteria by the Administration.
The third aspect that was discussed in the Working Group was administrative cooperation in matters of VAT and, specifically, the prevention and fight against fraud in VAT . The Group was given a guide that has established the EU VAT Forum. Clarifies that in this VAT Forum there is a bilateral representation made up of tax administrations and the business sector, specifically, the large European employers' associations. This cooperation guide arises as a consequence of the concern in the business sector of being involuntarily involved in chains of VAT fraud, particularly in intra-community fraud, due to the fact of not having taken due diligence. due, in the opinion of the tax administration. It also addresses aspects of how to avoid these unintended implications. Mr. Marcos Álvarez adds that the objective of the guide is to facilitate cooperation between companies and the Administration in order to avoid fraud in VAT , as well as to identify risk situations and sectors, establishing an immediate, direct and permanent communication channel for the exchange of good practices between companies and Administrations, which addresses what level of diligence should be required of companies to avoid being involuntarily involved in fraud schemes and where the Administration informs the companies the risk behaviors detected. He adds that, as the Director General of the Tax Agency has expressed, the possibility of establishing a type of “good taxpayer” certificate is being studied. The Deputy Director General of Legal Regulation continues by communicating that after the summer a meeting of this Working Group on this matter will be convened and urges companies to send to the Tax Agency the proposals that companies wish to contribute.
Finally, the fourth point that was addressed at the Working Group meeting were issues related to the implementation of certain recommendations of BEPS at the national level and, specifically, the preparation of the ministerial order that establishes the obligation of country-by-country information (CbC Report). Comunica que está prevista la celebración el próximo día 6 de julio de una reunión del Grupo de Trabajo a fin de tratar la posible fecha de entrada en vigor de dicha orden, así como el ámbito subjetivo de aplicación y el contenido de la información a facilitar. Añade que la Secretaría Técnica de este Foro remitirá la convocatoria y el orden del día, en breve, e indica que, aunque el número de participantes tiene que estar necesariamente limitado, se ofrece la posibilidad de asistir a empresas que no participan en las reuniones habituales del Grupo de Trabajo.
Excise Working Group
Ms. Pilar Jurado Borrego, Director of the Department of Customs and Excise Taxes, explains that in this first semester the Group has met on one occasion and that the issues discussed were all proposed by the companies and focused on improving the procedures of in order to define the possible responsibilities that may arise from the application of the regulations of II.EE. , since, in this matter, the regulations are very strict in terms of formal procedures. Ms. Pilar Jurado adds that the Director General has already mentioned some of the issues discussed and that she would like to focus on the issue related to the super-reduced rate for natural gas. He comments that what companies request is the establishment of a census of beneficiaries, so that the supplier can be sure that they are selling to an appropriate recipient. He points out that for this, in addition to requiring a regulatory modification that, on the other hand, could be undertaken, it would be necessary to go against the formalistic simplicity that was established at the origin of the Tax on natural gas, but that, nevertheless, is I would analyze the issue. He also expressed the interest of the Tax Agency in knowing the number of final consumers and requested that companies, to the extent possible, provide the information.
Regarding the reductions in the Coal Tax, the Director of the Customs Department e II. EE. points out that they are not regulated, because the tax regulations do not include them in the cases of non-submission. Thus, also in this case, a legal modification would be necessary and he adds that it would also be necessary to present a proposal that justifies the existence of these losses and their percentage, to be studied by the General Chemical-Technological Subdirectorate of the Department of Customs and Excise Taxes.
Ms. Pilar Jurado continues, indicating that another of the topics discussed was the supply of diesel at a reduced rate to deceased recipients. It points out that, without prejudice to the improvements that the Administration can make in terms of providing information to companies, it would also be interesting for companies to establish in their commercial departments a permanent review protocol for the recipients of the service.
Ms. Pilar Jurado continues by commenting that another issue that arose at the Working Group meeting was that of the dialogue on the part of the company regarding the people who attend to the intervention at the facilities. Points out the Director of the Customs Department and II.EE. that the Tax Agency is analyzing the various actions carried out by the intervention based on its nature and content and how the power by which the representative of the owner of the establishment is designated to attend to the Intervention must be sufficient.
Another issue discussed in the Working Group was the proposal made by a company to allow operators access to a database of territorial Excise Tax records. Reports the Director of the Customs Department and II. EE. that this request has been deemed feasible and work is underway to establish a query where an authorized entity can view all of their authorizations together.
The last issue discussed at the Working Group meeting referred to the possibility of establishing the validity as a proof document of a taxpayer's declaration as a final consumer in electronic format as if it were a paper document. Ms. Pilar Jurado points out that the Tax Agency is also studying this matter, in order to hinder the commercial distribution of operators as little as possible.
Cooperative Relationship Working Group
Mr. Ignacio Huidobro Arreba, Central Delegate of Large Taxpayers, begins his presentation by highlighting two initiatives that have occurred within the scope of the DCGC . The first refers to instructions for the dissemination and application of the Code of Good Tax Practices and the recommendations and commitments derived from the Agreement on the development and monitoring of the application of CBPT , approved in the session plenary session on November 2, 2015. In the second part of the instruction, the practices of permanent monitoring and evaluation of compliance with the recommendations of the Code have been incorporated. The Central Delegate continues by pointing out that within the scope of the inspection procedure, the actuaries will comply with the commitments derived from the Code and will verify that they are also fulfilled by the companies. Thus, in the inspection procedures, before the file is revealed, the Tax Agency, as promised, will explain the reasons for the regularization.
Mr. Ignacio Huidobro continues by explaining that the second initiative has been the carrying out of a series of activities to prepare the operating conditions of the census of companies adhering to the Code of Good Tax Practices. To this end, a Working Group has been created in the Central Delegation of Large Taxpayers whose objectives are the identification of participating companies, the establishment of a computer solution that supports the census with the procedure verification tool, the design of a procedure of permanent management, the study of the information and standardized documentation to be incorporated into the procedures, as well as the study and proposal of action protocols by the different management centers. It must be taken into account that the member companies are not only attached to the Central Delegation, but may be attached to other territorial delegations. The Central Delegate clarifies that this is the reason why some companies may receive a request for clarification, since there were doubts regarding the scope of adherence to the Code.
Mr. Ignacio Huidobro continues by commenting that regarding the Cooperative Relationship Working Group, it has met in this first semester on two occasions and, as the Director General of the Tax Agency has already announced, the convenience of organizing a meeting was discussed. day with companies adhered to the Code of Good Tax Practices, aimed especially at those that do not participate in the Large Companies Forum, in order to provide them with more precise knowledge about it. However, due to the existence of pending matters, it has been decided to postpone said meeting. Another issue discussed in the Working Group meetings has been the reinforcement of corporate tax transparency. In this sense, adds the Central Delegate, there have been a series of informal contacts with the collaborator of the Technical Secretariat of the Forum, who sent a document based on the voluntariness and bilaterality of the additional exercise of transparency, and proposing that, in advance, Each company and the AEAT , by mutual agreement, would establish the content and scope of the information, as well as the format in which it would be provided, pointing out the inadequacy of establishing standardized models. Regarding the process of offering information, companies propose taking into consideration the following aspects: the opportunity and moment, the ways to avoid unnecessary workloads, the establishment of a dynamic communication channel as well as periodic meetings, the confidentiality of the information, the scope of the reportable content and its format and the realization of the recognition corresponding to the degree of transparency. Mr. Ignacio Huidobro continues, indicating that on this basis the Tax Agency considered it appropriate to prepare a working document for study and debate by the working group. He continues by pointing out that the document begins with an introductory point where a series of reflections are collected in relation to transparency and the cooperative relationship, to continue developing the following aspects: the purpose of the proposal, the scope of the information (nature, use, form and deadline for presentation), treatment of the same and usefulness of the report for companies. End the document with a general conclusion. Mr. Ignacio Huidobro adds that the document considers the year 2016 as an experimental period that allows this matter to be improved, completed and consolidated, determining the most effective and useful measures. Next, the Central Delegate makes a presentation of each of the points included in the document.
The Central Delegate concludes his intervention by highlighting that the general conclusion contained in the document is that the transparency report represents a significant advance in the cooperative relationship model, based on the principles of transparency and mutual trust. Mr. Ignacio Huidobro adds that it will be necessary to monitor and evaluate the functioning of this cooperative relationship instrument that is proposed, gradually introducing the improvements that are considered appropriate. Likewise, the document proposes a period of experimentation, as well as a series of general and flexible guidelines on the possible structure and content of the transparency report.
Next, Mr. Santiago Menéndez opens a session of interventions so that the representatives of the member companies of the Forum can make the comments they consider appropriate.
Ms. Carmen Alonso Peña, Tax Advisor of Banco de Santander and collaborator of the Technical Secretariat, intervenes first, who, after thanking the words of the Vice President and the presentation of the representatives of the Tax Agency, goes on to comment on the situation from the companies' point of view:
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In relation to the Working Group for Analysis of Tax Regulations and Conflict Reduction, he highlights two fundamental aspects on which, in his opinion, we must continue working: on the one hand, the effects of the Administration's own acts and, on the other, in international taxation, the doubts of the “country-by-country report”, especially for companies that already have to prepare said report. In both matters, the Technical Secretariat Collaborator undertakes to send the Group's working documents to all members of the Forum and requests any comments they deem appropriate regarding them. Likewise, it encourages companies that are members of the Forum and that do not have representation in the Working Group, to participate in its next meeting.
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Regarding the Special Tax Working Group, it points out the active role of companies and the good communication that exists.
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In relation to the Cooperative Relationship Working Group, he appreciates the document prepared by the AEAT regarding corporate tax transparency and adds that they are currently analyzing it. Ms. Carmen Alonso undertakes to send it to all the representatives of the companies in the Forum, so that they can send the observations they deem appropriate and be able to reach the preparation of a document of mutual agreement based on the voluntariness of transparency. reinforced and bilateral, pointing out that standardization can lead to very different situations in the relationship between the Administration and one company or another, since not all of them start from the same situation or have the same capacity to adapt. On the other hand, the reputational effect for companies derived from the preparation of a transparency report stands out positively.
Mr. Jacinto Esclapés Díaz, Vice Secretary of the Board of Directors and Director of Taxes of AMADEUS IT HOLDING, then takes the floor, proposing that when a document is submitted to the Plenary sessions for approval, that it be attached to the minutes that are perform it.
Mr. Ángel Rodríguez intervened, indicating that he took note and that when a document is to be submitted for approval by the Plenary, it will be distributed along with the call.
Mr. Santiago Menéndez then takes the floor and explains that in relation to the Immediate Information Supply Project (SII), whose draft Royal Decree already had the report of the Council of State, due to the fact that there is currently a Government in functions, it will not be able to be implemented on the planned date (January 1, 2017). However, the Tax Agency continues to consider it a very important project, which changes from the management point of view the way of relating to the Tax Administration, adding greater immediacy with respect to the moment in which operations occur.
The General Director of the Tax Agency continues by emphasizing that in terms of cooperative relationships, the Tax Agency has the firm intention of improving and advancing.
The Vice President then asks if anyone else wants to make any comments and if none are made, he moves on to the next item on the agenda.
5. Next call
The Vice President points out the benefits of maintaining this semiannual cadence that has been recovered in the Plenary meetings and states that the 13th meeting will be convened in the next semester. It then gives way to the last point on the agenda.
6. Other considerations, requests and questions
Mr. Santiago Menéndez proceeds to open a speaking session and, as no comments were made by the attendees, after thanking everyone, he concludes the 12th plenary session of the Large Business Forum and says goodbye until the next meeting.
THE TECHNICAL SECRETARY
ANGEL RODRÍGUEZ RODRÍGUEZ
Vº Bº
THE VICE PRESIDENT OF THE FORUM
SANTIAGO MENÉNDEZ MENÉNDEZ