Law 11/2021, of July 9, on measures to prevent and combat tax fraud, has introduced an important modification in the scope of sanctions derived from the application of the special regime of the group of entities of the Value Added Tax (VAT), or regime of entities of the VAT.

The application of the special regime of the group of entities of the VAT It came to complete, for indirect taxation, the traditional group taxation regime contemplated in the area of ​​direct taxation for Corporate Income Tax, that is, the fiscal consolidation regime.

Despite the differences between the corporate tax consolidation regime and the entities regime of the VAT, there is no doubt about the similarity and parallelism in the configuration and application of both special regimes, a circumstance that has resulted in homogeneous treatment in both cases since 2008 in the development of control procedures and also in the sanctioning procedures developed on the groups, both for Corporate Income Tax and for VAT.

In particular, in the area of ​​the application of sanctions derived from the control of the application of the special regimes of fiscal consolidation of the ES and entities of the VAT No special practical problems have arisen in the context of the corporate 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.

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

This parallelism led, within the framework of the corresponding sanctioning procedures, to the consideration of the dominant entity of the group of VAT 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 included the consideration of the dominant entity of the group as an offender in the area of ​​tax groups of the Corporate Tax, but not in that of groups of entities of the VAT, along with the fact that the Law of VAT He mentioned the fact that entities that apply the group regime of the VAT They are liable for violations 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 the VAT, the entity, dominant or dependent, that was responsible for the breach that gave rise to the imposition of the sanction was considered to be the offender.

The application of a different criterion in the Corporate Income Tax groups and in the groups of VAT, in determining the offending subject in two special regimes of such similar configuration and operation did not seem a desirable situation, and the legislator chose to modify the determination of the offending subject in the scope of the groups of the VAT, to align it with the regime applicable to Corporate Income Tax, and in order to provide 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, section two, modifies section seven of article 163 nonies of the Law of the VAT, specifying that the parent company is responsible for the aggregate declaration and is responsible for the truthfulness and accuracy of the amounts and ratings recorded by the dependent companies and which are included in the group's aggregate declaration-settlement.

With these modifications, the regulation of the determination of the offending subject in the scope of groups is equalized between the Corporate Tax and the VAT, with the entity representing the group being considered the offender in both cases, by legal consideration and regardless of which entity comprising the group committed the infringement, it being understood that it will be the head entity of the group that is responsible for it, as the presenter of the consolidated or aggregated model of the group and its representative before the tax authorities.

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 the application of a more favorable regime for the offender, but rather a modification of the determination of who is considered an offender in the groups of the VAT, in terms equivalent to the regime applicable in the context of Corporate Income Tax groups, and, consequently, the legal amendment can only be applied with respect to violations committed after the entry into force of Law 11/2021.