On May 25, Law 13/2023 (Provision 12204 of BOE No. 124 of 2023) was published in BOE , which modifies the General Tax Law to transpose the EU Directive 2021/514 amending Directive 2011/16/EU on administrative cooperation, establishing the seventh version of the same (better known as DAC7).

The aforementioned Directive introduces a new figure of advanced administrative cooperation, understood as cooperation that goes beyond a documentary exchange: the so-called joint inspection, which is incorporated into our regulations through the aforementioned Law 13/2023.

Prior to this rule, presence in administrative offices or participation in administrative investigations (known as PAOE) and simultaneous control were already regulated as figures of advanced administrative cooperation. In the General Tax Law they were regulated in articles 177 quater (simultaneous controls) and 177 quinquies (presences). The aforementioned Law 13/2023 gives new content to the articles and begins to regulate presences and controls in article 177 quater and the new joint inspection at 177 quinquies .

It is a good opportunity to remember all the existing administrative cooperation figures and the advantages they can bring in the exercise of inspection or control activity in general.

In the first of the figures, the PAOE, an Administration needs information already available or action to be carried out by another Administration in another jurisdiction to obtain information that cannot, or would take a long time, to obtain adequately with a documentary requirement. This is a unilateral interest and can be resolved immediately in a visit to the offices of another Administration to obtain the necessary information or action to obtain it. It is a figure that can be used with all taxes and even for Collection.

The second figure is simultaneous control, already veteran and well-known, widely used in Europe; These are situations in which two or more Administrations have a common or complementary interest in persons or entities. It is developed through control actions carried out by each Administration, which facilitate an exchange of information on their findings and even the discussion of the information obtained and the derived consequences, always ultimately substantiated in national procedures and without legal obligation. of submission to the common conclusions.

As a consequence of this practical reality, a new advance in cooperation emerges, joint inspection (Joint Audit). This tool comes into force no later than January 1, 2024 in accordance with the Directive (January 1, 2024 in Spain) and does not represent, by any means, the replacement of national procedures. Basically, national inspections continue and are the only ones that can establish a tax debt, although there is progress in terms of the common action that constitutes this joint inspection, which should not be confused with the actual national inspection action. It involves carrying out joint actions, according to a plan or agreement between tax administrations, without constituting a common administrative procedure with interested parties. Some powers included in the new regulations already existed in other regulations and were applied in simultaneous presences or controls, but they are included with greater precision in the new regulations:

• It applies to all types of taxes except for VAT , Special Taxes and Customs. Mainly for direct taxation.

• Joint inspection actions will be carried out in a previously agreed and coordinated manner, always in accordance with the legislation and procedural requirements of the Member State in which they are carried out at all times.

• The rights and obligations of officials participating in activities carried out in another Member State shall be determined in accordance with the legislation of that State. At the same time, they will not exercise any powers that exceed those conferred on them by the legislation of their own State, so there is a double limit for these.

• There is no obligation to a common outcome once participation is accepted. The authorities will only endeavor to agree on the facts and circumstances relevant to it, as well as to reach an agreement on the tax situation of the person(s) inspected

• Final report. The conclusions of the joint inspection will be integrated into a final report. Matters on which the competent authorities reach agreements will be reflected therein and will be taken into account in the relevant instruments issued by the competent authorities of the participating Member States after the joint inspection. That is, what was agreed in the document must be reflected in the minutes or other documents of the procedure. Additionally, they may include issues on which no agreement has been reached that may not be taken into account in internal procedures.

• Notification. A copy of the final report will be notified to the inspected person(s) within 60 days. Let us remember, regardless of the status of the internal inspection.

The National Office of International Taxation is the inspection body in charge of coordinating this type of actions. An official from the office acts as coordinator and liaison with other Administrations, forming part of the AIAC, which is the Advanced Administrative Cooperation Community, made up of representatives of all Member States. Additionally, by choice, it is part of the so-called “coordination group” within it. This group is sponsored by the European Commission and, like all cooperative activities, financed with the FISCALIS budget. Advanced administrative cooperation refers to all instruments and all taxes.

The general guidelines of the 2023 Annual Tax and Customs Control Plan provide for a promotion of this type of actions, considered a necessary piece within the 360 transfer pricing strategy, stimulating them in three ways: systematic inclusion of an assessment of its use in the initial stages of inspection checks, strengthening of the organization dedicated to its management and coordination and the training of participating actuaries

You can consult the full text of the Law at the following link: Law 13/2023, of May 24 .