The publication of three conflict reports in the application of tax regulations in the first months of 2026 provides a good opportunity to briefly reflect on the dissemination of these reports on the AEAT Electronic Headquarters website.

The publication complies, as is well known, with the mandate contained in section 6 of article 194 of the General Regulation of the actions and procedures of tax management and inspection and development of the common rules of the procedures for the application of taxes, approved by Royal Decree 1065/2007, of July 27, which was added by Royal Decree 1070/2017, of December 29 and in force since January 1, 2018.

This precept regulates the publication of the administrative criteria contained in the reports in which the existence of a conflict in the application of the tax rule is appreciated, thus serving as a development of the new legal regime introduced by Law 34/2015 of September 21, of partial modification of Law 58/2003, of December 17, General Tax Law, which a little more than two years before had modified its article 15 and introduced a new type of infringement in article 206 bis. As stated in the preamble to this Law 34/2015, experience in the application of the conflict in the application of the tax rule, once ten years had passed since the entry into force of the General Tax Law, advised allowing the imposition of sanctions.

Thus, considering the nature of the conflict in the application of the tax rule, the type of infringement introduced in article 206 bis of the General Tax Law requires the concurrence of an additional element to the failure to pay all or part of the tax debt, the improper requesting or obtaining of tax refunds or the improper accreditation of tax credits to be offset or deducted in future declarations, whether one's own or those of third parties, results, moreover, already provided for in the sanctioning types regulated in articles 191, 193, 194 and 195 of the General Tax Law. The penalty type in Article 206 bis of the General Tax Law requires that such material results be obtained as a consequence of operations that are regularized through the application of Article 15 of the General Tax Law and that said operations bear “substantial equality” with other cases in respect of which the existence of conflict in the application of the tax rule has been previously appreciated, said administrative criterion having been made public prior to the start of the self-assessment period of the tax in question. The copy of the reports that are incorporated into the Electronic Office of the AEAT includes, for these purposes, the month and year in which their publication occurred.

Thus, the occurrence of the type of infringement of article 206 bis of the LGT requires not only that in the inspection proceedings the existence of a conflict in the application of the tax rule is appreciated, but also that the taxpayer knew or could have known, before submitting his self-assessment, that operations substantially identical to those he carried out had been previously regularized through this general anti-abuse clause. This reform therefore aims to prevent taxpayers from reproducing business schemes previously regulated for their abusive nature without incurring liability for committing tax offenses, as happened in the past with certain types of operations already clearly and expressly addressed by the tax system.

For these purposes, it should be recalled that the existence of a general rule against abusive practices such as that contained in Article 15 of the General Tax Law is a requirement of European Union law established in Article 6 of Council Directive (EU) 2016/1164 of 12 July 2016, which lays down rules against tax avoidance practices which directly affect the functioning of the internal market. The imposition of sanctions as a consequence of the application of the general anti-abuse clause is in accordance with European Union law, since, as its preamble (paragraph 11 of the recitals) states, “[m]ember States should not be prevented from applying sanctions where such general rules are applicable.” In any case, the principle of liability for tax offenses governs the Spanish tax system, so the imposition of a penalty requires proving not only the occurrence of the conduct classified as an offense (objective element), but also the necessary subjective element, duly justified by the bodies responsible for the application of taxes and the imposition of penalties.

Regardless of the significant effects triggered in terms of sanctions, the dissemination of conflict reports in the application of tax regulations also plays an essential role in a preliminary phase, as it allows taxpayers and the professionals who advise them to know which operations have been considered abusive by the tax administration and the reasons that led it to reach that conclusion. The administrative criterion that is thus made transparent is not binding on taxpayers, who have the right to structure their operations in the way they deem appropriate. However, knowledge of the tax administration's arguments for considering a business scheme abusive often leads taxpayers to avoid using it, or, if necessary, to avoid using it. to anticipate the future existence of a controversy and the possible imposition of a sanction, which increases the predictability of the administrative action.

To date, there have been twenty-two operations in which the existence of a conflict in the application of the tax rule has been observed since January 1, 2018, the date of entry into force of the regulatory amendment. According to the literal interpretation of the provision, as well as its purpose, only those reports of the Advisory Commission that declare the existence of a conflict in the application of the tax rule are subject to publication, not those in which the concurrence of the requirements of article 15 of the General Tax Law is not appreciated despite having processed the procedure regulated in article 159 of the General Tax Law. The rule requires the publication of all reports that show the circumstances of article 15 of the General Tax Law, even when they are substantially the same as others already published.

The operations described in the reports available on the AEAT Electronic Office are of a very diverse nature, referring both to complex business schemes that include different tax jurisdictions, and to simpler operations that do not present cross-border elements. Regarding the different taxes, the operations analyzed in thirteen of the published reports constitute abusive schemes in relation to Value Added Tax, many of them referring to cases of artificial interposition of companies to achieve the deduction of the tax borne in the operations carried out, in many cases of real estate, despite carrying out an activity that does not grant the right to such deduction. In the area of ​​direct taxation, the reports refer to both Corporate Income Tax, in which they highlight structures aimed at abusively achieving the deductibility of financial expenses, and to Non-Resident Income Tax or Personal Income Tax.

In accordance with the Law, the reports are drafted and signed by the Advisory Commission on conflict in the application of the tax rule, which is a body that is constituted ad hoc to analyze each operation in which its application is proposed, and therefore the members that make it up may vary in relation to each case. Decisions are adopted by a majority of its four members, who normally belong to the General Sub-Directorates of the Directorate General of Taxes competent in relation to the tax in question and in matters of tax procedure (one of them acting as President, with a quality vote), to the Department of Financial and Tax Inspection of the AEAT and to the Inspection Unit in which the inspection actions are carried out.

In accordance with the provisions of the General Tax Law, the existence of a conflict in the application of the tax rule requires that the taxable event be totally or partially avoided or the tax base or debt be reduced, so it is in the verification of the taxpayer in which one of these circumstances occurs, in which the application of the anti-abuse clause is analyzed, and this despite the intervention of other taxpayers in the business scheme. Sometimes, the same operation implies that the avoidance of the taxable event or the reduction of the base or the debt occurs in more than one taxpayer, which requires that the existence of a conflict in the application of the tax rule be declared in relation to each of those to whom a settlement must be issued based on its existence, processing the special procedure and analyzing individually the allegations that they make. If the application of Article 15 of the General Tax Law is appropriate, a report is issued for each taxpayer, all of them being published on the Electronic Headquarters of the AEAT, although with the same number as they refer to the same operation. This is the case, for example, with the reports published under numbers 6, 13, 16 and 20. In particular, in the latter, the existence of a conflict in the application of the tax rule was declared in relation to the entity that was obliged to practice withholding for Personal Income Tax (report number 20), as well as with each of the recipients of said income (reports 20 bis, 20 ter and 20 quater).

Publishing a copy of the original reports allows one to know the details of the alleged case analyzed, although all data that could lead to identifying the people involved must be hidden. The purpose of declaring a conflict in the application of the tax rule is the existence of one or more operations that produce the result that is subject to regularization by the Tax Administration, so that if those operations affect different tax periods, it is not necessary to repeat the declaration for each of them, even when the administrative regularization occurs in different procedures because the effects of the operations are projected to subsequent years. This administrative criterion has recently been adopted by the Supreme Court in its judgment of February 27, 2025 (rec.1034/2023), section 10 of the fourth legal basis.

Regarding this last ruling, it establishes a relevant jurisprudential doctrine in relation to the interpretation of article 15 of the General Tax Law, stating that “[t]he national anti-abuse clause, conflict in the application of the rule —article 15 of the General Tax Law— must be interpreted in accordance with EU law, which has considered that an overriding reason of general interest that may justify the application of restrictive measures to fundamental freedoms is the prevention of the abuse of tax rules.”

The above must be integrated with the consolidated doctrine of the Supreme Court in relation to the application of articles 13 (qualification), 15 and 16 (simulation) of the General Tax Law. Thus, the Supreme Court ruling of July 2, 2020 (rec.1429/2018) states the following:

“It is evident that the interpretation of the tax system constitutes the starting point of any activity of the enforcer of the law, including —it goes without saying— the tax administration. Thus, the interpreter must first determine —when dealing with acts or transactions with tax implications— whether or not to correct the classification given to those acts or transactions by the parties in accordance with the provision contained in Article 13 of the General Tax Law.

Only if the business name corresponds to its true legal nature, the interpreter would have to analyze, applying article 16 of the General Tax Law, whether that act or business suffers from simulation, in order to apply the rule not to the act or business apparently carried out or celebrated but to those actually wanted by the parties. And the closing anti-avoidance clause (Article 15 of the General Tax Law) would only apply to properly classified acts or transactions that, of course, do not suffer from any simulation in the expression of the will of the parties.”

In some cases, the delimitation between simulation and conflict in the application of the tax rule is not simple, as the Supreme Court has also recognized, and the circumstances of each specific case must be taken into account in accordance with the criteria established by the Jurisprudence and the Administrative Doctrine.