The inspiration for these lines is a real case and the arguments I have given, which I submit to any further consideration, are those I intend to present, in case they might be useful to someone.
The greatest difficulty for a jurist lies in knowing how to identify and apply general concepts. However, it is common for law students, at least in their first years, to go looking for the specific article of a given law that gives them an exact solution to the factual situation raised, when on the contrary, the rulings of the Supreme Court are a constant application of these general principles, especially in matters of obligations and contracts.
THE SETTLEMENT OF THE INHERITANCE TAX OUT OF TIME
The question I was asked was about the consequences of an inheritance tax settlement being submitted after the deadline, that is, after six months have passed since the death of the deceased, as established by law.
This subject, which has no mystery, I have already dealt with in this entrance of the blog, and so on as long as there has not been a prior request from the administration, The only consequence of filing your tax return late, will be the obligation to pay the enforcement surcharge (3,75%; 7,5%; or 11,25% respectively), depending on whether the presentation is made within 3, 6 or 12 months following the end of the period established for presentation and payment.
After 12 months without having submitted the tax settlement, the surcharge will be 15%, and you will also have to pay late payment interesta (legal interest increased by 25%).
The inheritance tax law also allows:
to.- Request an extension for a period of six months, with the only requirement that it be done within the first five months of the submission period,
b.- Request a deferral, for a period of up to one year, of the payment of the settlements made due to death, provided that there is no effective inventory or sufficient easily saleable assets for the payment of the settled installments and it is requested before the regulatory payment period expires. The granting of the deferral will entail the obligation to pay the corresponding late payment interest.
c.- And it is also possible to request postponement in case of unknown heirs, until the successors in title are known, or in the case of transmission by inheritance of individual or habitual residence businesses, up to three years.
INTERRUPTION OF THE SUBMISSION PERIOD
In cases where there is a dispute over issues related to wills or donations, the submission deadlines are suspended and will resume when the resolution of the dispute is final.
However, not all disputes over inheritance or donation interrupt the submission period, but only the trials previously called testamentary trials (which deal with the division of the inheritance) and in criminal proceedings relating to the falsification of the will or donation. Once the period for submitting documents is interrupted, it will resume from the day after the final resolution that ends the judicial procedure becomes final.
On the other hand, article 69.5 of the Inheritance Tax Regulations reminds us that
"Judicial proceedings aimed at opening wills or elevating them to public deeds, the preparation of inventories to accept the inheritance with this benefit or to deliberate, shall not be considered contentious matters for the purposes of the suspension of time limits referred to in the preceding sections. the appointment of a guardian, curator or legal defender, the prevention of intestacy or probate proceedings, the declaration of heirs when no opposition is raised and, in general, the actions of voluntary jurisdiction when they do not acquire a contentious character.”
This declaration of the inheritance tax regulations has as its only legal support, article 31 of the inheritance tax law, which states that the presentation of the tax declaration covering the taxable event must be carried out within the time periods and in the manner determined by regulation.
THE SUBSTANTIVE ISSUE BEING DISCUSSED
The question they asked me was complemented by the fact that the heir was a minor, who had lost both parents in an accident, and if the tax return had not been submitted within the deadline, without requesting an extension or deferral, it had really been, first of all, due to an impossibility, since there was a family dispute about who would assume guardianship, which caused the judicial resolution to be delayed for a time considerably longer than that necessary for the liquidation of the inheritance within the deadline, even though a voluntary extension had been requested, And in second place, due to the complexity of the inheritance, with significant assets abroad.
THE POSSIBLE SOLUTION
In accordance with the facts and legal regulations set out above, there is no choice but to conclude that, as a consequence of the late payment of the tax, the late payment surcharge and late payment interest must be paid, which in this specific case amount to a not inconsiderable amount, since the aggravating factor is that the tax legislation applicable to inheritance is the least beneficial of those existing in Spain.
That is to say, disputes over the appointment of a guardian, curator or legal defender do not interrupt the tax settlement period, unless their contentious nature can be justified.
I will not deny that the aforementioned regulatory standard seems to me to be unfair or at least poorly adapted to today's reality, much more complex than the one taken into account at the time of its drafting (26 years ago), but a jurist worth his salt cannot constantly invoke material justice as an argument, and much less so in the administrative-tax field.
But at the same time it seems to me that the rule contained in article 69.5 of the Inheritance Tax Regulations should not be applicable to the case I am presenting, as it is not in accordance with the provisions of the General Tax Law, which establishes as indicated in its article 1 the principles and general legal rules of the Spanish tax system and will be applicable to all tax administrations by virtue of and with the scope derived from article 149.1.1.ª, 8.ª, 14.ª and 18.ª of the Constitution and in its article 8 it determines the matters that are subject to legal reserve.
What are the principles that I consider to be breached by the inheritance tax regulations?
In my opinion, two. First of all, to demand a tax without the tax legal relationship being configured in all its elements; and in second place, because the rules regarding tax penalties do not apply to the enforcement surcharge and late payment interest.
1.- The elements of the tax legal relationship.
The tax legal relationship, once the concept of tax as a manifestation of the power of "imperium" has been overcome, can be considered as an obligatory relationship based on which the creditor (the Public Treasury) has the power to demand a certain performance from another, the debtor. The peculiarity of this obligatory relationship is that the content and the extent of the performance due are determined exclusively by law.
Regardless of the existence of more complex positions in tax doctrine, we can say that in the tax legal relationship, based on its obligatory nature, it requires an active subject who has a legal power, which is none other than the public treasury, and a passive subject, who has a legal duty, and who is the taxpayer.
A basic element for the existence of any legal relationship is that the subjects that are part of it have legal capacity, but in order to be able to demand the corresponding benefits, in the case of obligatory relationships, it is necessary that the taxpayer has the capacity to act or that he acts through his legal representative.
In the tax field, this idea is expressed in articles 44 and 45 of the LGT.
Article 44. Capacity to act.
In addition to those persons who have such capacity according to law, minors and incapacitated persons shall have the capacity to act in tax matters arising from activities whose exercise is permitted by the legal system without the assistance of the person exercising parental authority, guardianship, curatorship or legal defence. The case of incapacitated minors is excepted when the extent of the incapacity affects the exercise and defence of the rights and interests in question.
Article 45. Legal representation.
1. For persons who lack the capacity to act, their legal representatives will act..
In the case submitted to me for consideration, in my opinion, if the taxpayer lacks the capacity to act and there is no guardianship or representation body established, it can simply be said that what is suspended is the birth of the tax obligation itself, without being able to force the closest relatives to extreme diligence in requesting the deferral of the tax, or paying it from their own assets, without certainty that they will be appointed as guardians, much less making them responsible for possible delays in the Administration of Justice.
2.- The legal nature of the enforcement surcharge and late payment interest.
Pursuant to article 25.1 of the LGT, the surcharge and late payment interest are accessory tax obligations, since their requirement is imposed in relation to another tax obligation. In the absence of greater precision in the law, the doctrine (Clavijo Hernández) has ruled in the sense that they are obligations of a compensatory or punitive nature. This punitive nature makes them similar to tax sanctions, despite not being legally considered as such (article 25.2 of the LGT).
The consequence of this punitive nature is the possible extension to the surcharge for enforcement and late payment interest, the list of subjects who may be considered as offenders, and in this matter article 181 LGT tells us that they will be natural or legal persons and entities without legal personality that carry out the actions or omissions classified as infractions in the laws, provided that they are responsible for them.
Among others, the following will be considered offenders:
a) Taxpayers and substitutes of taxpayers.
b) Withholders and those required to make advance payments.
c) Those required to comply with formal tax obligations.
d) The entity representing the tax group in the tax consolidation regime.
e) Entities that are required to impute or attribute income to their partners or members.
f) The legal representative of the obligated subjects who lack the capacity to act in the tax order.
g) Taxpayers in accordance with the regulations on mutual assistance.
Very much in relation to what this article provides This is what is provided for in article 179 LGT which among other things tells us that the actions or omissions specified in the laws will not give rise to liability for tax infringement (…)
a) When they are carried out by those who lack the capacity to act in the tax order.
b) When force majeure occurs. (…)
d) When due diligence has been exercised in the fulfilment of tax obligations. Among other cases, it will be understood that due diligence has been exercised when the obligated party has acted based on a reasonable interpretation of the law.
I give an example of the application of these rules in the area of personal income tax.
Let's suppose that a minor owns 100 shares in a company that has distributed dividends amounting to 90,000 euros. The minor's uncle is the minor's legal representative and has not filed income tax returns for the year to which the data refer.
In this case, the minor is subject to personal income tax as a taxpayer, although the offender will be his legal representative (the uncle), since the minor lacks the capacity to act, and he and not the minor will be required to pay any penalties that may be imposed.
In the case submitted to me for consideration, the literal application of article 69.5 of the inheritance tax regulations implies the imposition of an accessory obligation, but of a punitive nature, on a person (the minor) who lacks the capacity to act and who could not fulfill his obligations on his own, which seems contrary to 179 LGT. And on the other hand, the accessory (punitive) obligation is not required of the legal representative, which should be in accordance with article 181 LGT. But in the event that it was required of him, it would be for actions that he did not have the possibility of carrying out and much less fulfilling, since he could not access, without a judicial appointment, the information on the assets of the inheritance, their administration and the disposition of those that were necessary to pay the main tax obligation.
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