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Publicity of situations of relevant non-compliance with tax obligations

Law 34/2015, of September 21, partially modifying the General Tax Law 58/2003, of December 17, incorporated article 95 bis, which enables the Administration to disseminate a list of defaulters due to debts or sanctions to the Spanish Public Treasury, and which is configured as an exception to the general principle of confidentiality of tax data.

The disclosure of this list of tax debtors arises from the need to enhance the effectiveness of the tax system, reinforcing the mechanisms at the disposal of the Public Treasury in order to fulfill the general duty of contributing to the support of public expenses of article 31.1 of the Constitution Spanish.

Along with the achievement of this duty of solidarity, the publicity of situations of relevant non-compliance contributes to the fight against tax fraud through the dissemination of behaviors that are especially harmful to the public treasury, while promoting and incentivizing voluntary compliance with payment. of tax obligations . At the same time, the Tax Administration carries out an exercise in transparency of public activity.

Numerous neighboring countries also reveal, by publishing the corresponding lists, the identity of the taxpayers who have failed to comply with their tax obligations. This is the case of Bulgaria, Croatia, Slovakia, Slovenia, Finland, Greece, Hungary, Ireland, Portugal, the United Kingdom and Romania. 

In four recent rulings on appeals (86/2023, January 25; 130/2017, of February 2, 58/2023, of January 20; and 131/2023, of February 2), deliberated on January 17, 2023, the Supreme Court ruled for the first time on the scope and interpretation of the so-called list of defaulters of article 95 bis of LGT , establishing that the lists of defaulters can only include firm debts. 

In addition to the reasons that serve to moderate the use of the aforementioned list in cases of definitive establishment of the debt, when it has obtained finality, in two other cases they were the so-called "settlements linked to crime", that is, those that They occur in cases where the Administration sees evidence of a crime against the Public Treasury. The TS declares that these settlements linked to crime are estimates with the aim of being integrated into the criminal process and under the power of the judge, so they do not generate tax debts suitable for those affected. may appear on the list of defaulters of article 95 bis, since such inclusion, on the one hand, would collide head-on with the principle of presumption of innocence, which can only be destroyed by a final judicial sentence of conviction. 

With the current legal configuration, the Tax Administration agrees to the publication of situations of relevant non-compliance with tax obligations, when the following circumstances occur, on December 31 of the year prior to the corresponding publication agreement:

  • The list will be comprehensive of all debtors of the Public Treasury, including those who have the status of debtors having been declared jointly liable for debts or tax penalties.
  • The total amount of tax debts and penalties pending payment, including where appropriate those that would have been required after the declaration of joint and several liability, exceeds the amount of 600,000 euros.
  • That said debts or tax penalties had not been paid after the original payment period in the voluntary period had elapsed.
    In the case of debts included in declaration of responsibility agreements, it will be necessary for the payment period of article 62.2 of this Law to have elapsed after notification of the declaration of responsibility agreement and, where applicable, of the payment demand agreement.
  • Debts and tax penalties that are deferred or suspended will not be included.
  • It can only include firm debts, and those on which a firm condemning court ruling has been issued.
  • The advertising regulated in article 95 bis LGT will refer exclusively to state-owned taxes for which the application of taxes, the exercise of sanctioning power and the powers of review are attributed exclusively to the bodies of the State Tax Administration, there being no delegation of powers in these areas in favor of the Autonomous Communities or Local Entities.
  • It is applicable with respect to the taxes that make up the customs debt.

Once the affected debtors have been notified of its publication, if within the period of allegations, they make full payment of the outstanding debt, they will be excluded from it, constituting another incentive for the Public Treasury towards voluntary compliance.

Therefore, in compliance with the mandate contained in the indicated precept, and for the sake of the general duty to support public expenses, next June 2024, the corresponding list will be published to publicize relevant non-compliance situations, where the legally established requirements have been met on December 31, 2023, and after strictly following the procedure provided for this.