Notice on the entry into force of articles 29.2.j) and 201.bis of the General Tax Law.Pending regulatory development
On 11 October 2021, articles 29.2.j) and 201.bis of the General Tax Law, introduced by Law 11/2021, of 9 July, on measures to prevent and combat tax fraud (Final Provision Seven of Law 11/2021), will come into force.
Article 29.2.j) establishes "the obligation, on the part of producers, marketers and users, that the computer or electronic systems and programmes that support the accounting, invoicing or management processes of those who carry out economic activities, guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records, without interpolations, omissions or alterations that are not duly noted in the systems themselves".
This article adds that "Regulations may establish technical specifications to be met by these systems and programmes, as well as the obligation for them to be duly certified and to use standard formats for their readability".
The regulatory development mentioned in Article 29.2.j) is currently underway, so the manner in which to comply with the obligations established in this Article is not yet fully defined and it will be necessary to wait for the Regulation to establish the requirements to be met by the computer or electronic systems and programmes and, where appropriate, the way to certify them.
It is therefore necessary to await regulatory development in order to know in detail the requirements to be met by computer programmes and systems, as well as, where appropriate, the form of certification or accreditation of compliance with these requirements.
Article 201.bis regulates infringements for the manufacture, production, marketing and possession of computer systems that do not comply with the specifications required by the applicable regulations.
Paragraph 1 defines as a serious tax offence the manufacture, production and marketing of computer or electronic systems and software which:
a) allow separate accounts to be kept under the terms of Article 200.1.d) of this Law;
(b) allow the notation of completed transactions to be wholly or partially unrecorded;
(c) allow transactions other than book entries to be recorded;
(d) allow transactions already recorded to be altered in breach of the applicable rules;
e) do not comply with the technical specifications that guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records, as well as their readability by the competent bodies of the Tax Administration, under the terms of Article 29.2.j) of this Law;
(f) the systems manufactured, produced or placed on the market are not certified when required to do so by regulation
Points (a), (b), (c) and (d) shall apply directly from 11 October 2021.
Points (e) and (f) explicitly require regulatory development.Therefore, they will not apply until the Regulation is adopted and enters into force.
Section 2 of Article 201.bis refers to the possession by users of computer or electronic systems and programmes that do not comply with the provisions of Article 29.2.j) of this Law, when they are not duly certified and must be certified by regulatory provision or when the certified devices have been altered or modified.
Therefore, until the regulatory development of the certification referred to in this section takes place, users may not be penalised for non-compliance with this article.