Frequently asked questions about Form 289

Yes.

Section 7 of Additional Provision 22 of Law 58/2003, of December 17, General Tax Law, establishes an obligation of communication between parties (declarants and declared), providing the following:

“ Any financial institution obliged to communicate information in accordance with the provisions of this 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 relevant Member State in accordance with Directive 2011/16/EU and the international agreements indicated in this provision. Such communication must be made before January 31 of the calendar year following the first year in which the account is a reportable account. Likewise, the financial institution will provide the natural person with sufficient advance notice of all the information that he or she has the right to receive so that he or she can exercise his or her right to the protection of his or her personal data and, in any case, before the information collected by him or her is provided to the Tax Administration ”.

Spain has assumed the obligation to automatically exchange information on certain financial accounts with other jurisdictions, provided that the requirements established for this by international regulations are met.

This has meant that financial institutions are obliged to identify the residence of the persons who hold the ownership of these financial accounts or control of the entities that own them, so that, when the residence is not in Spain, they must provide certain information to the AEAT so that, subsequently, Spain can transmit it to the Tax Administration of the jurisdiction of residence of the holder or person who exercises control in relation to said accounts (Additional Provision 22 of Law 58/2003, General Tax Law of December 17).

Financial institutions are understood to mean depository institutions, custodians, investment institutions and certain insurance entities (Section VIII of the Annex to Royal Decree 1021/2015, of November 13, which establishes the obligation to identify the tax residence of persons who hold ownership or control of certain financial accounts and to report them within the scope of mutual assistance).

In order to comply with this obligation, and thus ensure that the information transmitted within the framework of the automatic exchange of information between Spain and these other jurisdictions is correct, financial institutions must obtain information from their clients about their residence, requesting the submission of a declaration (self-certification).

Financial institutions must send this request to the holders of all accounts opened after 01/01/2016, both on the occasion of opening and when there has been a change in circumstances since the initial declaration (self-certification) was submitted. In this regard, failure to submit the declaration (self-certification) within 90 days of requesting the opening of the account will result in the financial institution not making charges, credits, or any other operations on the account until the time of its submission.  Institutions may also request such self-certifications for accounts opened before 01/01/2016, in order to determine the residence of the account holder, especially in cases of changes in circumstances.

Once the request for declaration (self-certification) has been received from your financial institution, the holder of a certain account or person who exercises control over an entity that holds an account is obliged to provide the necessary data to identify his or her tax residence.  You may be sanctioned if you communicate false, incomplete or inaccurate data to the financial institution, when this results in an incorrect identification of the tax residence of the aforementioned persons (Additional Provision 22 of Law 58/2003, General Tax Law of December 17).