Main tax innovations introduced by Law 13/2023
GENERAL TAX LAW
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Corrective self-assessments.
Section 3 is modified and a section 4 is added to article 120 of the General Tax Law. Likewise, the twenty-sixth Additional Provision of the General Tax Law is modified.
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The new figure of the corrective self-assessment is included by which the taxpayer may rectify, complete or modify the self-assessment previously presented, regardless of its result, by submitting a corrective self-assessment, thus replacing it in those taxes in which this is established, the presentation of complementary declarations and requests for rectification.
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When the rectification of a self-assessment implies a reduction in the amount to be paid from the previous self-assessment and does not give rise to an amount to be returned, the payment obligation will be maintained up to the limit of the amount to be paid resulting from the rectification.
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Although the entry into force of this new form of rectification of errors occurred on May 26, 2023, the implementation of the corrective self-assessment requires that it be included in the regulations of each tax through the modification of the corresponding regulations and ministerial orders approving the self-assessment models.
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When the tax regulations establish that the rectification of a self-assessment must be carried out by submitting a corrective self-assessment, the references contained in the current provisions to the request for rectification of self-assessment will be understood to be made for said tax to the corrective self-assessment.
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Limited verification.
Sections 2 and 4 of article 136 and section 2 of article 138 of Law 58/2003, of December 17, General Tax ( LGT ) are modified by sections five and six of the sole article of Law 13/2023, of May 24:
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The framework of the actions of the Tax Administration in limited verification procedures is expanded, recognizing the power to verify commercial accounting, for the sole purpose of verifying the coincidence between what appears therein and the information contained in it. power of the Tax Administration, including that obtained in the procedure.
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The Tax Administration may request third parties to provide information and supporting documentation in order to verify the veracity of the information held by the Tax Administration, including that obtained in the procedure.
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Limited verification actions may be carried out outside the offices of the Tax Administration, in cases where it is appropriate for the examination of the accounting, in which case the officials who carry out said actions will have the powers recognized in sections 2 and 4 of article 142. of this law.
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The accounting must be examined at the home, premises, office or office of the taxpayer, in the presence of the taxpayer or the person designated, unless the taxpayer consents to its examination in public offices. However, the Tax Administration may analyze copies of the accounting in any medium in its offices.
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Information and due diligence obligations relating to financial accounts in the field of mutual assistance.
With effect from January 1, 2023 , Additional Provision 22 of Law 58/2003, of December 17, General Tax, is modified ( LGT ) by section ten of the sole article of Law 13/2023, of May 24:
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Through this modification, the wording of section 7 of Additional Provision 22 of the LGT is specified, which regulates the obligation of information and due diligence related to financial accounts in the field of mutual assistance (CRS), with the purpose of guaranteeing, with respect to the obligation of information already existing between parties (declarants and declared), the exercise of the right to protection of personal data.
In this way, the current wording provides that any financial institution obliged to communicate information in accordance with the provisions of the aforementioned Additional Provision, must inform each natural person subject to communication of information, that the information about them that is the subject of said communication obligation will be communicated to the Tax Administration and transferred to the corresponding Member State in accordance with Directive 2011/16/EU and the corresponding international agreements, also adding as a novelty that the financial institution will also provide the natural person with sufficient advance notice of all the information that is have the right to receive so that they can exercise their right to the protection of their personal data and, in any case, before the information collected is provided to the Tax Administration.
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Obligation to provide information on cross-border tax planning mechanisms.
Sections 1, 2 and 3 are modified and a new section 5 is added in Additional Provision 23 of Law 58/2003, of December 17, General Tax ( LGT ), all this through section eleven of the sole article of Law 13/2023, of May 24:
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Specifically, the wording of sections 1, 2 and 3 of Additional Provision 23 of the LGT that regulates the obligation to provide information on cross-border tax planning mechanisms is specified, in order to include as Subjects obliged to communicate information also to persons or entities that are considered intermediaries or interested taxpayers, according to the Multilateral Agreement between Competent Authorities on the automatic exchange of information related to the mechanisms of avoidance of the Common Standard for the communication of information and the opaque extraterritorial structures and their Model Standards for Mandatory Communication of Information to address mechanisms for circumvention of the Common Standard for Communication of Information and Opaque Extraterritorial Structures, and other international agreements signed with the same objective.
Consequently, in section 1 of the aforementioned Additional Provision, among the information to be provided to the Tax Administration, a new section d) is added that refers to the information on cross-border mechanisms defined in the Multilateral Agreement between Competent Authorities on automatic exchange. of information relating to mechanisms for circumvention of the Common Information Communication Standard and opaque extraterritorial structures, and in other international agreements signed with the same objective.
Likewise, the wording of section 2 of the aforementioned Additional Provision is specified, making reference not only to Council Directive 2011/16/EU, but also to the previously mentioned Model Rules.
Finally, in section 3 of Additional Provision 23, the reference to the previously mentioned Multilateral Agreement is also added.
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Additionally, a new section 5 is introduced in Additional Provision 23 of the LGT , with effect from January 1, 2023, to include a new obligation communication between parties (declarants and defendants). Specifically, it is established that any intermediary obliged to provide the information in accordance with the provisions of the aforementioned provision, must inform each interested taxpayer who is a natural person subject to communication of information, that the information required about said taxpayer will be provided to the Administration. tax and transferred in accordance with Directive 2011/16/EU and the corresponding international agreements. Likewise, the intermediary will provide the natural person with sufficient advance notice of all the information that they have the right to receive so that they can exercise their right to the protection of their personal data.
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NEW Obligation of information and due diligence related to the informative declaration of platform operators obliged in the field of mutual assistance (DAC 7).
With effect from January 1, 2023, a new information and due diligence obligation is established regarding the informative declaration of platform operators obliged in the field of mutual assistance , through the introduction of a new Additional Provision in the LGT , Additional Provision 25.
Through this Additional Provision, the transposition into the General Tax Law of Council Directive (EU) 2021/514, of March 22, 2021, amending Directive 2011/16/EU relating to the administrative cooperation in the field of taxation (DAC 7), which establishes this new obligation of information and due diligence for platform operators obliged according to European regulations. The provisions contained in this regard in the Multilateral Agreement between Competent Authorities for the automatic exchange of information on income obtained through digital platforms within the OECD, as well as in other international agreements, are also incorporated into the domestic legal system. subscribed with the same objective.
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Specifically, the new Additional Provision 25 of the LGT , in its section 1, establishes that entities that are considered “platform operators obliged to communicate information”, in accordance with the provisions of Article 8 bis quarter and Annex V of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as well as the Multilateral Agreement between Competent Authorities for the automatic exchange of information on income obtained through digital platforms and the Model Rules for the communication of information by operators of platforms with respect to sellers in the field of the collaborative economy and the gig economy, and in other international agreements signed with the same objective, must apply due diligence standards and procedures and comply with the obligations of registration and provision of information in accordance with the aforementioned regulations.
Likewise, people and entities that have the status of “sellers” , in accordance with the aforementioned regulations, must comply with the obligations derived from the application of the due diligence rules and procedures.
These due diligence standards and procedures will be developed by regulation, as well as the aforementioned registration and information provision obligations.
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For their part, sections 2, 3 and 4 of Additional Provision 25 of the LGT regulate the regime of infractions and sanctions derived from non-compliance with the obligations of registration and provision of information and the due diligence rules and procedures provided for in section 1 of the aforementioned Additional Provision.
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Additionally, section 5 of Additional Provision 25 of the LGT specifies that when a “seller” does not provide the “platform operator obliged to communicate information” with the information required in accordance with the regulations and due diligence procedures, having received two reminders related to the operator's initial request and after a period of 60 calendar days from the initial request, said operator will close the "seller's" account and prevent him from re-registering on the platform or will withhold payment of the “consideration” until you provide the information requested.
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Likewise, section 6 of Additional Provision 25 of LGT regulates the precautionary deregistration in the corresponding census of the “platform operator obliged to communicate information” referred to in section I, section A, point 4, letter b), of Annex V to Council Directive 2011/16/EU, when the reporting obligation referred to in paragraph 1 is not met, after two requirements.
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Finally, sections 7 and 8 of Additional Provision 25 of the LGT include, respectively, the obligation to preserve and make available to the Tax Administration documentary evidence, records and any information used to apply due diligence procedures and to comply with the obligations of registration and provision of information during the 10 years following the end of the reference period to which the provision of information and the obligation of communication between parties (declarants and declared parties) corresponds. .
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CORPORATION TAX
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Modification of the limitation on the deductibility of financial expenses
With effects for tax periods that begin on or after January 1, 2024 , the fifth Final Provision of Law 13/2023, of May 24, modifies article 16 of the Law 27/2014, of November 27, on Corporate Tax, with the purpose of adapting it to Council Directive ( EU ) 2016/1164, of July 12, 2016. In this sense, first section of article 16 is modified, incorporating that, in the determination of the operating profit, in no case will the income, expenses or income that would not have been integrated into the tax base of this Tax.
On the other hand, the sixth section of article 16 is modified by excluding the non-application of the limitation provided for in said article to mortgage securitization funds, regulated in Law 19/1992, of July 7, on the Regime of Real Estate Investment Companies and Funds and on Mortgage Securitization Funds, and the asset securitization funds referred to in Additional Provision five.2 of the Law 3/1994, April 14.
VALUE ADDED TAX
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Warehousing regime other than customs: goods subject to Special Taxes (article 18. Three, 83.Two LIVA )
With effect from January 1, 2023, section One of the First Final Provision of Law 13/2023, of May 24, modifies:
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Section Three of article 18 of Law 37/1992, of December 28, on Value Added Tax (LIVA), to establish that in cases of abandonment of the deposit regime other than the customs regime for goods subject to Special Taxes (IIEE), an operation will be carried out assimilated to an import and not an import of goods, regardless of their origin.
This modification aims to facilitate the settlement of these operations, given that the goods subject to IIEE that are in this suspensive regime and have been previously imported, are subject to mixing in tax warehouses with others of the same type and nature that may come from the internal or community market.
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Section Two of article 83 of the LIVA, in order to make a technical adjustment in the tax base of imports of goods and operations assimilated to imports of goods.
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Location of services: rule of effective use or exploitation (article 70. Two LIVA)
With effect from May 26, 2023, the Second section. One of the first Final Provision of Law 13/2023, of May 24, modifies the application of the rule of effective use or exploitation, which allows the subjection in the Spanish territory of application of the tax (TAI) of those services performed outside the Community, but whose effective use occurs therein, excluding financial and insurance operations between businessmen.
This modification aims to guarantee the neutrality of the tax and the competition of these strategic sectors of the Spanish economy in equivalent terms to the other sectors of economic activity excluded from the application of said rule by Law 31/2022, of December 23, of General State Budgets for the year 2023.
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E-commerce: Import regime - IOSS (article 163 quinvices LIVA)
With effect from May 26, 2023, the Second section. Two of the first Final Provision of Law 13/2023, of May 24, modifies the electronic commerce import regime (IOSS) to allow entrepreneurs and professionals to have the headquarters of their economic activity in the Canary Islands, Ceuta or Melilla, to benefit from it without the need to have a representative established in the Community.
In this case, the Member State of identification will be the Kingdom of Spain.