Law 11/2021, of July 9, on measures for the prevention and fight against tax fraud, has introduced an important modification in the area of ​​sanctions derived from the application of the special regime of the group of entities of the Value Added Tax (IVAABBR), or the regime of entities of the VAT.

The application of the special regime for the group of entities of IVAABBR It came to complement, for indirect taxation, the traditional group taxation regime contemplated in the field of direct taxation for Corporation Tax, that is, the tax consolidation regime.

Despite the differences between the tax consolidation regime of Corporate Income Tax and the regime for entities of IVAABBRThe similarity and parallelism in the configuration and application of both special regimes is undeniable, a circumstance that, since 2008, has resulted in a homogeneous treatment in both cases with regard to the development of control procedures and also the sanctioning procedures developed on the groups, both for Corporate Income Tax and for the VAT.

In particular, in the area of ​​the application of sanctions arising from the control of the application of the special tax consolidation regimes of ES and from entities of IVAABBR No special practical problems have arisen in the context of the corporate income tax consolidation regime: The General Tax Law has traditionally considered the dominant entity of the tax group as the offending party; This is stated in letter d) of section 1 of article 181. According to this provision, the offending party will be "the entity representing the tax group in the tax consolidation regime."

In short, in the area of corporate tax consolidation groups, the status of offending party has always fallen on the entity representing the group, regardless of whether the offending conduct was carried out by the entity representing the group itself or by any of its dependent entities. It should be noted that, in corporate tax, it is the group that is considered the taxpayer of the tax.

From 2008 onwards, the evident parallelism between the group taxation regimes of Corporate Income Tax and the IVAABBR It brought with it a homogeneous treatment and development, for both cases, of the control procedures carried out by the Tax Agency, and also of the criteria followed in the framework of the imposition of sanctions. Although the technical configuration of the group as a taxpayer, existing in the Corporate Income Tax, was not transferred to the context of the groups of IVAABBRThe parallel between both taxes is undeniable in the definition of a single subject obliged to present a consolidated or aggregated declaration as representative of the collective formed by the group.

This parallel led, within the framework of the corresponding sanctioning procedures, to the consideration of the dominant entity of the group of IVAABBR as the offending subject, whether the offending conduct had been carried out by said dominant entity or by an entity dependent on the group.

Finally, this situation led to the establishment of reiterated doctrine by the Central Economic-Administrative Court through the resolutions of October 22, 2015 (RG 00/04381/2014) and July 15, 2016 (RG 00/05931/2013). The Central Economic-Administrative Court considered that the sanction could not be imposed on a dominant entity of the group for conduct committed by an entity dependent on it, based on the principle of personal responsibility for the penalty; The resolutions highlight the fact that Article 181 of the General Tax Law considered the dominant entity of the group as an offending subject in the area of ​​tax groups of Corporate Income Tax, but not in that of groups of entities of IVAABBR, along with the fact that the Law of IVAABBR It referred to the fact that entities applying the group regime of IVAABBR They are responsible for the infractions arising from non-compliance with their own tax obligations.

In compliance with the doctrine of the Central Economic-Administrative Court, in the sanctioning procedures derived from the application of the group regime of IVAABBRThe offending subject was considered to be the entity, dominant or dependent, that was responsible for the non-compliance that gives rise to the imposition of the sanction.

The application of a different criterion, in the groups of Corporate Income Tax and in the groups of IVAABBRIn determining the offending subject in two special regimes with such analogous configuration and operation, this did not seem a desirable situation, and the legislator opted to modify the determination of the offending subject within the scope of the groups of IVAABBR, to equate it with the regime applicable in Corporate Income Tax, and with the aim of giving uniform treatment to this matter in both special regimes.

Thus, Law 11/2021 introduces two modifications in this regard:

• Article thirteen, section seventeen, introduces a new letter h) in section 1 of article 181 of the General Tax Law, pursuant to which the offending party will be "the dominant entity of the group in the special regime of the group of entities of the Value Added Tax", in the same terms as those included in letter d) for the fiscal consolidation regime of the Corporate Tax.

• Article eight, paragraph two, modifies paragraph seven of article 163 nonies of the Law of IVAABBR, specifying that the parent entity is responsible for the aggregate declaration and is responsible for the truthfulness and accuracy of the amounts and qualifications recorded by the dependent entities and that are integrated into the aggregate declaration-settlement of the group.

With these modifications, the regulation of the determination of the offending subject in the area of ​​groups is equated between Corporate Income Tax and the IVAABBRIn both cases, the entity representing the group is considered the offending subject, by legal consideration and regardless of which entity within the group committed the infringement, it being understood that the head entity of the group will be responsible for it, as the presenter of the consolidated or aggregated model of the group and representative of the same before the Tax Administration.

Finally, it should be noted that Law 11/2021 does not introduce any transitional rule for the legal modification analyzed. The modification does not consist of applying a more favorable regime for the offending subject, but rather a modification of the determination of who is considered an offending subject within the groups of IVAABBR, in terms equivalent to the regime applicable in the context of Corporate Income Tax groups, and, consequently, the legal modification can only be applied with respect to infringements committed after the entry into force of Law 11/2021.