The TEAC Resolution of October 30, 2023 (RG 10039/2022) modifies its non-reiterated criteria established in the Resolution dated January 23, 2023 (RG 1024/2022) in relation to the delimitation of the objective element of the infringing type described in article 196 of the LGT. With this change in criteria, the TEAC returns to its previous criteria and considers that the violation of article 196 of the LGT is configured in such a way that its objective element allows it to include all the cases in which the UTE incorrectly allocates the tax base to its partners, also for having calculated or determined it incorrectly .

The successive modifications of criteria have derived from separate rulings of the National Court that analyzed the issue, reaching different conclusions.

In this way, the aforementioned Resolution of January 23, 2023 accepted the criterion established by the Judgment of the National Court dated November 23, 2022 (recourse no. 551/2020) , which interpreted article 196 of the LGT in the sense that it could not be applied in relation to adjustments to the tax base declared by the entity under the income imputation regime, given that the conduct corrected by said adjustments occurs at the time of determination of the tax base, not in that of attribution to the partners or members of the entity. According to their criteria, the sanction of article 196 of the LGT would only be applicable to cases in which the partners had been charged a percentage different from the one that would have corresponded to them. A cassation appeal was prepared against this ruling, which is currently pending a ruling.

Subsequently, the National Court corrected its own criteria in Judgment dated April 26, 2023 (recourse no. 758/2020) , based on the following arguments:

D.- Without ignoring the previous precedents, the Chamber, which may qualify or modify the criterion whenever it reasons, understands that the interpretation supported by the Administration is more accurate for the following reasons:

1.- As we explained at the end, the reason for the discrepancy centers on the interpretation of the expression "incorrectly allocating (...) tax bases or results to the partners or members." For the plaintiff, this expression only includes cases in which, regardless of how the tax base is calculated, a different percentage is attributed to the partners; while for the Administration it would include not only the cases in which a different percentage is imputed, but also those in which the BI is incorrectly calculated and therefore "incorrectly imputed".

2.-Entities under income imputation regime have special sanctioning rules contained in arts. 196 and 197 of the LGT.

The imputation regimes that currently exist are those of Economic Interest Groups (AIES) and Temporary Business Unions (UTE).

From the complete reading of art 196 of the LGT, put in relation to the regulation of the special regime, it is inferred that UTEs can have resident or non-resident partners. As these entities do pay IS tax on the part of the base that is attributable to non-resident partners or members, the lack of correct declaration by that part or fraction of the BIs attributable to them (to non-residents) will imply an ordinary infraction. which may be sanctioned in accordance with the provisions of arts. 191, 192 and 193, but not by art. 196 of the LGT.

On the contrary, when it comes to resident partners, these, to whom the UTE has imputed an incorrect BI, in principle, cannot be sanctioned, since they do not commit any infraction, since it is up to them to attribute correctly or incorrectly, but rather correctly declare what the UTE has charged them with. This point is essential when interpreting the scope of art 196 LGT, note that, in application of the principle of personality of the sentence, members who limit themselves to correctly declaring what the UTE has attributed to them cannot be sanctioned, the UTE having its own management or administration body - art. 8.d) of Law 18/1982 - Guilt for the erroneous calculation is enforceable against the UTE, since it cannot apply to those who limit themselves to declaring what is charged.

Well, precisely for this reason, because the members of the UTE who have limited themselves to declaring what they have accused cannot be sanctioned, a rule is necessary that specifically enables the imposition of the sanction - arts. 196 and 197 LGT - and hence, also, that conduct such as the one analyzed must be sanctioned, since if the rule is interpreted as the appellant intends, it would not be possible to sanction the members of the UTE who have correctly declared in accordance with what the UTE They were charged and the UTE could not be sanctioned either, which makes no sense, leaving the incorrect configuration of the BI unpunished.

In summary, the meaning "incorrectly" imputed cannot be interpreted in the sense proposed by the appellant that it only refers to the incorrectness of the percentage imputed to each UTE, but rather, far from it, it includes all the cases in which The UTE has "incorrectly" imputed a BI, both for imputing a percentage incorrectly and for imputing a lower BI.

As indicated, this is the criterion finally assumed by the TEAC in the Resolution of October 30, 2023, being set as follows:

The violation of article 196 LGT (incorrectly allocating, by entities subject to a regime of imputation of income, tax bases or results to partners or members) should be appreciated when what has been regularized is actually the tax base of the entity subject to a regime of imputation of income that it had incorrectly calculated.