Minutes of the meeting
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Large Companies Forum
PLENARY MINUTES 2/2022
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MINUTES OF THE PLENARY MEETING OF THE LARGE BUSINESS FORUM
HELD ON NOVEMBER 15, 2022
Vice President of the Large Business Forum
General Director of the State Tax Administration Agency
Mrs. Soledad Fernández Doctor
Members representing the Tax Agency
Director of the Tax Management Department
Mrs. Rosa María Prieto del Rey
Director of the Collection Department
Mrs. Virginia Muñoz Fernández
Director of the Department of Aduanas and Excise Duties
Mrs. Mª Pilar Jurado Borrego
Central Delegate of Large Taxpayers
Mr. Manuel Trillo Álvarez
Head of the National Office of International Taxation - Department of Financial and Tax Inspection
D. Luis Ramón Jones Rodríguez
Members representing Large Companies
ACERINOX
General secretary
Mr. Luis Gimeno Valledor
ACS
Tax Advice Director
Mr. Alfonso Moreno García
AMADEUS IT GROUP SA
Secretary to the Board of Directors
Mr. Jacinto Esclapés Díaz
SABADELL BANK
Deputy Director General Tax and Labor Consulting
Mr. Carlos Augusto Lázaro Rico
BANCO SANTANDER
Group Executive Vice President
Mrs. Carmen Alonso Peña
BBVA
Tax Discipline Leader
Mr. Manuel Díaz Corral
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
Director of the Tax Department
Mr. Luis María Sánchez González
ENDESA
Tax Affairs Manager
Mrs. María Muñoz Viejo
FCC
Director of the Tax Area
Mr. Daniel Gómez-Olano González
IBERDROLA
Head of the Department of Local, Regional and Energy Taxes
D. Jorge Corral García
MAPFRE
Tax Advice Director
Mr. Antonio Lafuente González de Suso
MERCADONA
Fiscal Director
Mr. Rafael Hilario López Villanueva
MICHELIN
Tax Manager
Mrs. Rosa María Peña García
NORFIN HOLDER
Tax Advisory Director
José Antonio Gibello Saiz
RENAULT
Director of Tax and Customs Affairs
Mr. Félix Ruiz Madarro
REPSOL
Senior Manager Tax Global Policies and Corporation - Tax Affairs Directorate
Mr. Alfredo Manero Ruiz
SEAT
Tax Director
Mr. Francisco Javier Baulenas Setó
SIEMENS
Tax Director
Mrs. Ana María Moreda Galante
TELEFÓNICA
Fiscal Director
D. Jerónimo Payán Prieto
VODAFONE
Tax Advisory Director
D. Javier Viloria Gutiérrez
Technical Secretariat of the Large Companies Forum
Technical secretary
Mr. Ignacio Fraisero Aranguren
On November 15, 2022, the twenty-fifth plenary session of the Large Business Forum will be held, attended by the aforementioned people, and in accordance with the following
AGENDA
- Opening of the session.
- Approval of the minutes of the meeting held on June 21, 2022.
- Summary of the different working groups of the Forum
- Next call.
- Other considerations, requests and questions.
1. Session opening
The session opens Ms. Soledad Fernández Doctor, General Director of the State Tax Administration Agency (hereinafter, Tax Agency), in her capacity as Vice President of the Large Business Forum, who, after greeting the attendees and thanking them for their presence and support for this meeting framework, reiterates what was stated on previous occasions in that it is the will of the institution it represents to continue advancing in the field of cooperative relations, so that a new model of relations of cooperation can become effective. the Administration with the companies that facilitate one and another in the development of the different activities entrusted to them. Likewise, he comments that he wishes to thank the proposals received in relation to the provisional report on the application of Law 11/2021, on measures to prevent and combat tax fraud, which Spain has to present in the 4th quarter of 2022 in compliance with the commitments assumed in component 27 of the Recovery, Transformation and Resilience Plan. It adds that the final report must be presented in the 4th quarter of 2023 and that, to prepare it, the collaboration of the Forum member entities will be requested again. On the other hand, the Director General points out that in the present plenary session, after approving, where appropriate, the minutes of the previous meeting, the Directors of the Customs and Excise and Tax Management Departments, as well as the Central Delegate of Large Taxpayers and the Head of the National Office of International Taxation (ONFI) will present the results and perspectives of the different Working Groups. Finally, Ms. Soledad Fernández Doctor informs that, as has already been communicated through the Technical Secretariat of the Forum, a meeting of the Special Taxes working group in relation to with the Taxes on non-reusable plastic packaging and on the deposit of waste in landfills, incineration and co-incineration of waste, applicable from January 1, 2023. He adds that, given the interest expressed by numerous companies, the invitation to participate in the meeting has been extended to all members of the Forum who wish to do so and to address the specific issues and doubts raised. Likewise, it communicates that, given the foreseeable breadth of groups that will be affected, the Department of Customs and Excise Taxes is intensifying its dissemination campaign, with the participation of the ADI .
2. Approval of the minutes of the meeting held on June 21, 2022
Ms. Soledad Fernández Doctor gives the floor to Mr. Ignacio Fraisero, Director of the Planning and Institutional Relations Service and Technical Secretary of the Forum, who points out that the minutes of the 24th session of the Plenary Session of the Large Business Forum were sent to the people members of the same as documentation attached to the call for the present plenary meeting and adds that, having not received observations and if there were none at this time, it would be definitively approved. Since no observations were made, the minutes of the plenary session of June 21, 2022 are declared approved.
3. Summary of the different working groups of the Forum
Ms. Soledad Fernández Doctor indicates that during the second half of 2022 the four working groups of the Forum have continued with their usual activity and each of them has held a meeting.
He then gave the floor to Ms. Pilar Jurado Borrego, Director of the Department of Customs and Excise Taxes, so that she could comment on the activity of the Special Taxes working group .
Ms. Pilar Jurado comments that, of the matters that were discussed at the working group meeting that took place on October 26, the following can be highlighted:
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In relation to the restructuring of the Tax on Fluorinated Greenhouse Gases: The companies highlighted difficulties in determining the quantity and type contained in the equipment pre-filled with these gases, to which the representative of the Customs and Excise Department responded that the regulations establish presumptions applicable in the event that the equipment or devices contain fluorinated greenhouse gases, but the quantity and type are unknown.
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Regarding the Tax on Non-Reusable Plastic Containers, attendees raised the following doubts and questions that were answered by the representatives of the Administration:
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Certification of the amount of recycled plastic in intra-community imports or acquisitions: The accreditation of kilograms of non-recycled plastic must be carried out in accordance with the provisions of article 77 and the tenth transitional provision of Law 7/2022, of April 8, on waste and contaminated soils for a circular economy. Thus, the transitional provision states that, during 2023, a “responsible declaration signed by the manufacturer” will be accepted for these purposes. Likewise, the means of proof are specified in the law: certification through an accredited entity or responsible declaration signed by the manufacturer (this accreditation is valid exclusively for the year 2023).
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Estimation of the amount of plastic in intra-community imports or acquisitions: The tax regulations do not allow an objective estimate of the tax base in these cases.
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Certification of the tax paid to request a tax refund: It must be carried out with the document that certifies its legal impact or its billing or certification in accordance with the provisions of article 82.9 of Law 7/2022. The justification must be provided if requested by the body that processes said refund request.
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Unification of the self-assessment model and the refund request model: The Ministerial Order by which the models will be approved complies with the provisions of article 82 of Law 7/2022, which differentiates between the two. However, once the tax comes into force, it could be assessed whether the exercise of both powers should be articulated differently when the status of importer and intra-Community purchaser coincide in the same operator.
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Plastic identification code (CIP): intra-community purchasers of products subject to the tax must obtain a CIP from the managing office of the Territorial Registry of the tax; not so the importers of said products.
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Accounting for protective plastic packaging (secondary and tertiary packaging): They are products subject to tax in accordance with article 68 of Law 7/2022, so they must be recorded in the manufacturer's inventory accounting or in the inventory record book of the intra-community purchaser.
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Threshold of 5 kilograms per calendar month in imports: You must complete the information in the DUA import.
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Regulatory development of the Law: Given that Law 7/2022 is very detailed, such development is not planned, although the models will be approved by Ministerial Order.
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Regarding the registration in the Territorial Registry of the Special Tax on electricity from production facilities: The participating entities highlighted the existence of a delay in obtaining the CIE of L1 by the electricity producing facilities; For their part, the representatives of the Tax Agency indicated that a producer, to carry out the taxable event, must have a CIE with a taxpayer activity code (LC) and that to benefit of the exemptions included in articles 94.5 and 94.7 LIE , must have a CIE L0 and L1, respectively. Thus, it was clarified that a production facility with CIE with activity code L0 would have the electricity it produced and used for its production activity exempt, so registration as L1 would only make sense if The electricity used for its production activity was that which was acquired from a third party, for which the exemption of article 94.5 LIE would not be sufficient. Likewise, attendees were urged to send a list of those operators affected by delays, in order to transfer the matter to the competent Management Office and, where appropriate, to accelerate the appropriate procedures.
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Regarding model 591 (Tax on the value of electricity production, annual declaration of operations with taxpayers): The processing of the modification of the Ministerial Order that regulates the model was reported so that taxpayers only have to declare the amounts paid corresponding to the electricity incorporated in the first and second quarter of 2021, since the amounts corresponding to the electricity incorporated in the third and fourth quarters should not be declared as the tax was suspended.
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Regarding the transposition of Directive 2020/262 in relation to intra-community circulation: The representative of the Customs and Excise Department reported that the Commission had already been informed that the Spanish Administration was planning to implement all the modifications in the EMCS in February 2023. Likewise, a summary of the main characteristics of the new guaranteed shipping system was made and it was clarified that the Directive applied to all member states.
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In relation to the new Ministerial Order approving the procedure for refunding the Hydrocarbon Tax on diesel for professional use: The representatives of the AEAT explained that it fundamentally entails the full implementation of the monthly periodicity in the management of the refund.
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Regarding Implementing Decision (EU) 2022/197 of January 17, 2022: It was reported that the fiscal marker for diesel fuel and kerosene had been established ACCUTRACETM PLUS, although Solvent Yelow 124 could continue to be used during the transitional period.
To conclude her intervention, Ms. Pilar Jurado points out that, in relation to the Tax on Non-Reusable Plastic Packaging, we must keep in mind that its objective is environmental, that is, the reduction of consumption of non-reusable plastic. Thus, it indicates that the Administration is aware of the complexity that its practical application entails for both companies and the Tax Agency, but that the regulations do not allow an objective estimation system. In this sense, the Director of the Department of Customs and Excise Taxes adds that, with a view to the entry into force of the tax on January 1, companies would have to prepare the information and that an element of contrast that they could use is the amount of plastic they take to be recycled, normally through waste removal companies, which they could extrapolate. Finally, he reiterates that the Tax Agency is aware of the difficulties, but that it will have to apply the tax, as will companies, and that they will have to contribute to guaranteeing the traceability of waste management.
Next, the General Director thanks Ms. Pilar Jurado for her intervention and offers the floor to the attendees in case they wish to make any comments or questions.
Firstly, Mr. Félix Ruiz Madarro, representative of Renault, intervenes to ask if the “responsible declaration” admissible during 2023 must be made by the taxpayer in the case of imports, to which Ms. Pilar Jurado answers that, Indeed, it would be up to the importer, although the information must be provided by the manufacturer.
Next, Mr. Daniel Gómez-Olano González, representative of FCC, expresses his concern with this issue and points out that, in his opinion, complying with the obligations of this tax is going to be almost impossible, and not only for companies, but also for the administration. He adds that this case is paradigmatic in terms of deficient legislative processing. Likewise, it indicates that what many of the companies present at the meeting want is for the Administration to propose a regulatory change after studying alternatives that, in this matter, other countries around us such as the United Kingdom or Italy have implemented. .
Ms. Pilar Jurado reiterates that, as is known by everyone present, the tax has an environmental objective, the reduction of non-reusable plastic packaging, and that in its processing, which has included a hearing and public information period , the ministries of Finance and Public Function and the Ecological Transition and Demographic Challenge have collaborated. However, it reiterates that the Administration is aware of the difficulties involved in its practical application and that it entails the introduction of modifications in taxpayer management systems. Likewise, he points out that one of the reasons why a meeting of the Special Taxes working group is going to be called on December 1, as the General Director has commented, is, precisely, to know how companies are progressing and what problems they are finding and to be able to assist them and provide them with the necessary help. Finally, Ms. Pilar Jurado states that all the observations and proposals received from the different sectors are being analyzed, studied and, where appropriate, sent to the corresponding body, and that, likewise, she is committed to analyzing the solutions adopted by the commented countries.
Mr. Francisco Javier Baulenas Setó, representative of SEAT, then takes the floor, who after pointing out that both the Administration and companies are going to have to allocate a large amount of resources to manage this tax, proposes that the Tax Agency consider implementing valuation agreements, as exist in other taxes, so that companies could use an estimation system based, for example, on a significant sampling of their most significant suppliers, the result of which could be extrapolated, thus avoiding having to control and requesting information on recyclable plastic from thousands of suppliers, undoubtedly contributing to simplifying the entire management. He adds that the development of some analogous instrument could be considered good help from the Tax Agency.
The Director of the Department of Customs and Excise Taxes responds that she agrees that an instrument similar to prior valuation agreements would facilitate the issue for companies and that, although they represent a significant management burden for the Administration, it could be considered assuming it. . He adds that, however, the problem is that there is no legal basis to carry it out. Thus, he points out that the Tax Agency is analyzing all the proposals received in order to verify if, legally, any other interpretation of the rule could be made that would contribute to simplifying the entire management process.
The SEAT representative intervenes again to reiterate what has already been discussed in other meetings about this tax, that it is not expensive, but putting it into practice entails great complexity.
Next, Ms. Soledad Fernández Doctor states that, even though it is a complex task for everyone, the approved regulations must be complied with. However, it indicates that different avenues will be explored in case it were possible to introduce a measure that would simplify the management of the tax. The Director General adds that the Tax Agency cannot make a commitment in this regard, given the approved regulatory framework, but that, if there is any progress on December 1, it will be reported at the meeting of the Special Taxes working group. .
Since there are no more interventions, Ms. Soledad Fernández Doctor indicates that, in relation to the working group for the Analysis and rationalization of indirect tax burdens , she will intervene first the Director of the Department of Tax Management to comment on the issues of the management area and, then, the Head of the National Office of International Taxation will present those within the scope of the Department of Financial and Tax Inspection.
Ms. Rosa María Prieto begins her presentation by pointing out that the working group has met on one occasion during the second semester, specifically, on October 19, and that of the issues discussed she will highlight the following:
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In relation to the 2022 information return campaign, the Deputy Director General of Tax Technology explained the modifications that were going to affect the different returns, although she clarified that these changes were not going to be very significant. Thus, he highlighted the following as the most innovative issues:
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At the end of August, Order HFP/823/2022 had been published, approving model 345 and modifying model 187.
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In relation to the projects that were in process, it was noted that the publication of the ministerial order that approved the informative statements related to virtual currencies was subject to the approval of the Regulation that regulates them.
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Regarding the actions to improve the quality of the information provided by the companies, the representatives of the Tax Agency commented, among others, the following:
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Taxpayers included in SII : The communications that the Tax Agency is sending to companies are reported, since a stagnation in the level of contrast is perceived, due, above all, to discrepancies in the invoice number received. In this sense, it is remembered that this number must coincide with the issuer's invoice number and that a series of recommendations regarding its coding are published on the Tax Agency's website. Likewise, it is commented that the improvement in the data provided has a direct impact on what the Administration subsequently makes available to the taxpayer, making it easier for them to prepare their returns.
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Sending communications to certain financial entities to remind them that the NIF of the communities of owners must be reported with the letter H; Likewise, it is commented that the third-party consultation service is available for census purposes, which facilitates the purification of the identifying data included in a declaration, before submitting it.
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Form 159 (Informative Declaration. Annual declaration of electrical energy consumption): It has been observed that the cadastral reference is sometimes omitted or erroneous. In this sense, the importance of the data is highlighted, in order to be able to make a correct imputation of consumption and expenditure. Likewise, it is reported that Royal Legislative Decree 1/2004, of March 5, which approves the consolidated text of the Real Estate Cadastre Law, establishes the obligation for the cadastral reference to be included in electrical energy contracts.
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Model 236 (Declaration of information on the use of certain cross-border mechanisms): It is noted that a reminder will be sent to those who are included in the communication models for cross-border mechanisms, indicating that the deadline for submitting the declaration for those used in 2021 is from October 1, 2022 to January 2, 2023.
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In relation to Corporate Tax, it was reported that the draft ministerial order would be processed on the same dates as the previous year since in 2022 the publication of the order had been considerably advanced (May 4). In addition, it was indicated that both the ministerial order and the registration designs would have to be adapted to include the minimum taxation of article 30 bis of Law 27/2014, although an attempt would be made to anticipate the registration designs so that , through them, the content of the ministerial order could be known in a more concrete way.
Mr. Luis Jones Rodríguez, Head of the National Office of International Taxation, then takes the floor, who, after apologizing on behalf of Mr. Javier Hurtado Puerta, Director of the Department of Financial and Tax Inspection, who was prevented by scheduling problems from attending the plenary session, points out that at the working group meeting the representatives of his Department basically presented two issues:
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Model 220 Clearance Engine: It was indicated that it was a very complex settlement and that the purpose of the tool was to provide an aid instrument for the correct settlement of the Tax to entities that pay taxes under the corporate tax group regime, since it allows the carryover of amounts pending compensation, such as negative tax bases. The importance of the tool for the Administration was also highlighted, since it links with its strategy of providing taxpayers with all the information available to make it easier for them to complete their returns. For their part, some companies raised objections regarding the underlying criteria in the settlement engine itself. The representatives of the Tax Agency indicated that the tool was under constant development in order to improve it and provide it with new functionalities and correct any problems that may arise. Finally, it was noted that approximately 64% of respondents had used the calculation engine.
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New regulations for requirements software billing: It was explained that Law 18/2022, of September 28, on the creation and growth of companies, establishes the universality of the mandatory nature of B2B electronic invoicing, as well as that the invoice must contain information on payment statuses. For this reason, it was pointed out that, although at first it seemed that the companies covered by the SII were not going to be affected by the new electronic invoicing regulation (still being processed), finally, they were. that will have an impact on them, since the information provided through SII is not sufficient to comply with the new information obligations established by Law 18/2022, which is very brief and is also pending regulatory development, which causes some uncertainty and does not allow us to go into details. For their part, the companies emphasized that providing additional information would mean incurring additional costs. Finally, the representatives of the Tax Agency at the meeting indicated that it would be very useful to have the case material that the companies participating in the Forum could contribute.
Next, the General Director thanks Ms. Rosa María Prieto and Mr. Luis Jones for their interventions and offers the floor to the attendees in case they wish to make any comments or questions.
Firstly, Ms. Carmen Alonso Peña, representative of Banco Santander, takes the floor to indicate that, in relation to models 200 and 220, she understood that at the meeting it was agreed that the companies would send any queries they needed regarding with the articulation of the minimum tax. He adds that, in order to request information from their organizations, it would be advisable to hold a special meeting on this topic in order to learn about the Tax Agency's approach regarding the required information and its format.
Ms. Rosa María Prieto responds that, fundamentally, trying to anticipate as far as possible the designs of the records of the Corporate Tax models has the purpose of allowing companies to know in advance of the publication of the ministerial order What will be the structure and content of the information that will be required in relation to the minimum tax. He adds that, once the companies have the registration designs, there would be no problem in holding a meeting to discuss any contributions that could be made.
Mr. Javier Viloria Gutiérrez, representative of Vodafone, then intervenes to indicate that the contrast problems in relation to the invoice number received are motivated, above all, by technical issues, since the computer systems of some companies include zeros, hyphens or other symbols that the Tax Agency application does not recognize. Ms. Rosa María Prieto responds that the invoice number received must be adapted to the format guidelines published in the electronic headquarters, but that, however, she will consult with the Tax IT Department in case a solution could be found. to these discrepancies.
Next, Mr. Manuel Trillo Álvarez, Central Delegate of Large Taxpayers, comments that in an analysis carried out within the Central Delegation it was found that, indeed, the discrepancies came almost 99% from formatting issues of the different computer systems.
Next, the Director of the Tax Management Department asks companies to, to the extent possible, try to adapt to the guidelines developed by the Tax Agency, since this will achieve a higher degree of verification, increasing the quality of the information. which is subsequently provided to taxpayers and, in addition, requirements are avoided.
Ms. Rosa María Peña García, representative of Michelin, then took the floor to point out that the companies had already indicated that the invoice number could cause these problems and that they had proposed carrying out the comparison using the date of the invoice and the amount of the invoice. same.
Ms. Rosa María Prieto answers that the Tax Agency technicians determined at the time that the only way to establish a unique identification was to use the invoice number, since, although it is not usual, a company could issue the same day for the same customer more than one invoice for the same amount. Finally, it reiterates that the issue will be transferred to the Department of Tax IT in case greater flexibility could be introduced regarding the recording of the data, since, although it cannot be completely resolved, it would be very useful to improve the degree of contrast. .
Next, the Renault representative asks if there is any forecast regarding the regulatory development of the billing project, to which Mr. Luis Jones responds that at this time there is no more information available. He adds that the members of the Forum will be kept informed of the progress made in this matter.
Since there are no more interventions, Ms. Soledad Fernández Doctor gives the floor to the Central Delegate of Large Taxpayers to comment on the activity of the Cooperative Relationship working group .
Mr. Manuel Trillo begins his presentation by pointing out that the working group met on October 27 and that the following issues were fundamentally discussed:
1) Use of Economic Interest Groups (AIE) as an investment structure: The representatives of the Tax Agency expressed their concern about the abusive use of the AIE that, although the Administration had supported them as a way to promote certain sectors such as shipping, their use had been proliferating in other areas such as cinema, R&D&i projects, etc. It was added that as the General Directorate of Taxes had established, its use was legitimate, but that the Tax Agency had been observing situations in which there was abuse, with returns of 60 and 70% of the investment, without excessive risk assumption. . Likewise, the Ministry of Science and Innovation had also expressed its concern, since, in relation to R&D&i projects, the recipients of the tax benefits were not the researchers. Thus, the opinion of the companies was requested on the matter, to which they responded that, recognizing the existence of the problem, the AIE was a figure that they treated with a certain distance and that stopping a use excessive was the responsibility of the Tax Agency, identifying, first, the structurers and, second, correcting the abuses. Likewise, they added that this type of structures are sometimes very useful to promote certain activities considered necessary, but that, however, clear rules should be established to prevent their use in activities for which this figure was not created. Finally, it was pointed out that, in order to clarify the matter, the convenience of issuing an administrative criterion on its correct use should be analyzed.
2) Instruments used in order to avoid international double taxation: At the meeting it was noted that the Administration's objective was to align all the instruments that were at the disposal of an entity to avoid double taxation (inspections, APA ,
3) Voluntary submission of transfer pricing documentation: It was reported that, as in 2016, the possibility for companies to voluntarily submit the transparency report had been approved within the framework of the Code of Good Tax Practices, the Tax Agency, in view of how useful the analysis was proving of these reports, it was considering the option for companies to voluntarily also present documentation on transfer pricing, something that some entities were already doing when presenting their transparency report. For their part, the companies valued the initiative positively, although they pointed out that the content and presentation deadline would have to be specified, as well as that it would be desirable to obtain an assessment from the Administration of the documentation provided. Regarding the latter, the representatives of the Central Delegation reiterated what was stated in previous meetings regarding transparency reports and added that, as occurs with the analysis of said reports, early knowledge by the Administration of the activity of companies in relation to transfer pricing would shorten the deadlines for verification procedures, while at the same time raising consultations and regularizations.
4) Report to be sent to the European Commission in relation to component 27 of the Recovery, Transformation and Resilience Plan: The Director of the Planning and Institutional Relations Service thanked the companies for the contributions they had made and announced that the report was still being prepared, but that the Forum members would be informed when it was finalized.
5) Evaluation of the cooperative relationship model: It was noted by representatives of the DCGC that this issue had been raised at the previous meeting of the working group, which took place on 9 June 2022, where it had been agreed that The companies would study the proposals made by the Tax Agency, but the issue remained pending. Thus, at the October meeting it was reported that the Tax Agency was very advanced in the work of preparing a valuation proposal and it was agreed that, once approved internally, it would be debated in the working group, in order to obtain a document consensus that could subsequently be presented to the members of the Forum for approval. Likewise, it was indicated that the Tax Agency was considering two aspects when preparing the proposal:
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Statistics: analyzing the evolution of litigation both quantitatively and qualitatively, as well as the use of collaborative instruments, such as transparency reports, APA , ...
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Survey: It would be voluntary and anonymous and would be aimed at both companies and Administration personnel. It would be inspired by the report prepared by the OECD “Tax Morale II”, in which, after identifying a series of challenges around trust and transparency, a series of approaches are established aimed at improving communication and building more effective relationships between tax administrations and taxpayers.
To conclude his intervention, Mr. Manuel Trillo points out that not only would it be interesting to know the opinion of the members of the Forum on the evolution of the Cooperative Relationship model, but it would also be very useful and would give greater legitimacy to the model that all the companies adhering to the Code of Good Tax Practices to express themselves on the issue. He adds that a meeting of the Cooperative Relationship working group will be called shortly to present the Tax Agency's proposal.
Next, Ms. Soledad Fernández Doctor states that, in her opinion, after so many years of operation, an evaluation of the state of the situation must be carried out in order to correct deficiencies and continue advancing in the construction of the model. He then offers the floor to the attendees in case they wish to make any observations or comments.
First of all, DD Manuel Alfonso García Rodríguez, representative of La Caixa, takes the floor to comment that he thinks it is a very positive proposal to carry out a retrospective analysis and that, in his opinion, after 25 plenary sessions of the Forum, what would be necessary is to establish a three-year strategic improvement plan, which would be worked on in the working group and on which reaching an agreement would be a realistic possibility.
Mr. Daniel Gómez-Olano then takes the floor, who, after stating that it also seems good to carry out a recapitulation on the evolution of the model given the time that has passed, points out that, regarding what was commented by the Central Delegate in relation to The voluntary submission of transfer pricing documentation is the same as with transparency reports and is that, lacking a feedback issued by the Tax Agency and within a reasonable period of time, the stimulus is less. He adds that in this matter the Administration always answers that it does not have a legal instrument that allows it to carry out an assessment of the information provided in the transparency reports presented by companies, but that, however, there are references in comparative law whose good practices They could be adapted to our legal system.
Mr. Manuel Trillo responds that he agrees that we must try to find a mechanism that satisfies the companies presenting the transparency report regarding the assessment of the information contained therein. However, he points out that there is a certain feedback since, as has been commented in previous meetings, from the analysis and discussion of the transparency reports, differences had sometimes arisen that had given rise to very specific partial regularizations. Likewise, he adds that, regarding documentation on transfer pricing, the extent to which the feedback from the Tax Agency could go is being studied.
Mr. Francisco Javier Baulenas then takes the floor to indicate that he wishes to ask two questions. The first is related to what was commented by the Central Delegate in relation to the coincidence in time of a verification procedure and a APA . Thus, he adds that his entity renewed certain APA before the start of an inspection procedure and that he would like to know if said APA continued their processing or had to wait for the verification to be completed, since the Tax Agency had not sent him any communication.
Mr. Luis Jones responds that the preference between one instrument or another is assessed in each specific case and reiterates that, in any case, the ONFI and the DCGC They will apply the same criteria regardless of which is processed first, since for the Tax Agency the result is the same. Thus, it indicates that the Central Delegation will inform SEAT about the decision adopted in the specific case about which it has been asked. Finally, in relation to the preference of one instrument over another, the Head of ONFI points out that at the working group meeting an entity commented that, even if the result were the same, For companies there was a different nuance, since it was not the same to present a APA to the Board of Directors as an inspection, even if it ended in compliance.
Mr. Francisco Javier Baulenas intervenes again to point out that, in relation to transparency reports, his entity has been presenting them for several years and in them, as well as during their analysis by the Administration, a lot of documentation on transfer pricing is provided and that , therefore, it is not clear that advancing the presentation of said documentation will represent progress. Likewise, returning to the transparency reports, he adds that he understands that a type of valuation certificate cannot be officially issued, but that, nevertheless, it should be noted in the subsequent actions of the Tax Agency. Thus, he reiterates that they have been presenting the transparency report for several years, with the provision of the complementary documentation required by the team that is analyzing it, and points out that he has been somewhat surprised by the beginning of a general verification procedure whose only argument was that did not prescribe exercise. The SEAT representative adds that the quid pro quo What the companies presenting the transparency report should obtain, which is studied by a risk analysis team of the DCGC , is an assessment of the information provided, once verified by the inspection that the facts are fulfilled.
Mr. Manuel Trillo responds that, indeed, there are transparency reports that include around 60 or 70% of the documentation related to transfer pricing, but that is not the case in all cases. He adds that what is intended by proposing the voluntary provision of said documentation is to standardize it with what would be required in the course of a verification procedure. On the other hand, the Central Delegate points out that now that exercises have begun to be verified in which the transparency report was already presented, experience is showing that the Tax Agency knows the essence of the activity, but not the details, that is , that although the transparency report provides information and explanations about the operations, it does not reach the level of detail that is achieved in an inspection procedure. Thus, in conclusion it could be said that the first cannot replace the second, but it helps in its processing. Furthermore, Mr. Manuel Trillo indicates that, if an issue has been satisfactorily explained in the opinion of the team that analyzes the transparency report, it is normal that, later, in a verification, the issue is not questioned.
Mr. Carlos Lázaro, representative of Banco Sabadell, then takes the floor to point out that expanding the areas where companies can explain, dialogue and understand each other with the Administration on complex issues for everyone and, furthermore, that the debate takes place in a moment and not in another, that is, in an environment of cooperative relationship, it cannot be valued more than positively. Likewise, it indicates that your entity is aware of the regulatory limitations that our legal system imposes on the Tax Agency in this matter. Finally, he points out that, in his opinion, progress will continue in this model and that new mechanisms will be established to make it effective.
Next, Ms. Soledad Fernández Doctor indicates that a meeting of the Cooperative Relationship working group will be convened as soon as possible in which the proposal for evaluating the functioning of the Spanish cooperative model prepared by the Tax Agency will be presented.
Since there are no more interventions, the Director General gives the floor to Mr. Luis Jones to comment on the activity during the second half of 2022 of the working group for Analysis of tax regulations and reduction of conflict .
The Head of the National Office of International Taxation indicates that the working group held a meeting on November 3 and that it basically addressed two issues:
1) New Crypto Asset Reporting Framework (CARF) approved by OECD : The representative of the General Directorate of Taxes commented that the new framework had been requested by the G20, with the aim of increasing transparency in the matter. Likewise, it was reported that the development of the mechanisms for its effective implementation was pending and that in the European Union they would be reproduced through DAC 8, with its application not planned before 2024. It was also noted that the new information obligations would be articulated through the modification of the Royal Decree that regulates the automatic exchange of financial accounts, with the date of approval of the national regulations not yet known, although it would be closely linked to the transposition of the Directive.
2) Latest conflicts in the application of the standard published: The representative of the Department of Financial and Tax Inspection at the meeting pointed out that in recent years the number of conflicts in application of the standard had increased due, fundamentally, to the numerous cases of VAT that the Courts were drifting towards this path, which had the peculiarity that an advisory Commission had to be established in which, in addition to the acting Tax Administration, the General Directorate of Taxes participated. Thus, conflict number 9 was discussed, relating to the non-deductibility of financial expenses in certain corporate operations, and, specifically, those derived from a loan obtained for the return of part of a share premium.
Next, the General Director thanks Mr. Luis Jones for his presentation and offers the floor to the attendees in case they wish to make any comments. Since there is no intervention, it moves on to the next item on the agenda.
4. Next call
The Director General states that the intention is to maintain the semiannual frequency of the meetings and that the next one would foreseeably be held in the month of June.
5. Other considerations, requests and questions
Next, Ms. Soledad Fernández Doctor opens a session of interventions.
Firstly, Mr. Ignacio Fraisero takes the floor to reiterate what was discussed in previous meetings in relation to the concern generated in the Tax Agency by the advertising of days without VAT , due to the negative impact that these actions have on the tax consciousness of citizens.
Mr. Francisco Javier Baulenas then intervenes, announcing that as of March or April 2023 he will leave his position as Director of Taxes at SEAT, so this will be the last plenary session he attends. He adds that he just wants to say goodbye and thank all the members of the Forum for their work and contributions that, personally, have been very enriching and have allowed the Forum to move forward since the establishment of the Forum in 2009, truly becoming a space of communication and dialogue. Finally, he comments that his successor has not been able to attend the plenary session because he is replacing him at another event, but that he will officially present it in the coming months.
Next, the Vice President of the Forum thanks, on behalf of all those present, Mr. Francisco Javier Baulenas for his participation during all these years in the different works that have been developed, as well as the collaborative spirit with which he has always made his contributions, even from the discrepancy.
Next, Ms. Carmen Alonso points out that, given the absence of the Technical Secretariat Collaborator representing the companies, she wishes to thank Mr. Javier Baulenas on behalf of the Forum for always being available, permanently contributing with his ideas, very positive and very critical about the aspects to improve, which has allowed us to continue moving forward. She adds that, likewise, she always made her task as a Collaborator of the Technical Secretariat very easy, for which she is very grateful.
Since there are no more requests to speak, the Vice President of the Forum thanks the attendees for their presence and concludes the twenty-fifth plenary session of the Large Business Forum, saying goodbye until the next meeting.
The Technical Secretary
Ignacio Fraisero Aranguren
Vº Bº
The Vice President of the Forum
Soledad Fernández Doctor