Tax Newsletter - December 2022

DAC 6: A person subject to legal professional privilege is not required to notify information to other intermediaries

The CJEU has concluded that DAC 6 violates the confidentiality of correspondence between private parties (and, ultimately the right of defense), by providing that states may require intermediaries with the right to a waiver from filing the information with the tax authorities (as a result of being subject to legal professional privilege), to notify, without delay, any other intermediary of their reporting obligations.

National Appellate Court changes its principle on  technological innovation tax credit for software projects

The National Appellate Court has held in several recent judgments that, as a general rule, although software projects may fall into the technological innovation category, the costs incurred in them will rarely give entitlement to the tax credit, because industrial design activities do not include software programs and “process engineering” should not be confused with “engineering for tools used in the process”.

Tax Agency required to use alternative forms of communication if it knows that the taxpayer is not accessing electronic notifications

The Constitutional Court has held that, if the tax authorities are aware that a taxpayer is not accessing their enabled electronic address, other means of communication must be established before an adjustment is made to the taxpayer’s position.

Security provided by main debtor to suspend enforcement of debt benefits joint and several co-debtors

The Supreme Court has concluded that, although the General Collection Regulations provide that applications for split, deferred or stayed payment of debts made by a co-debtor do not benefit the other co-debtors; the security provided by the main debtor does have to relate to the co-debtors.

Application of abatement multipliers to determine capital gain is a right not an option

The Catalan TEAR considers that the abatement multiplier rules that allow capital gains on transfers of assets acquired until 1994 to be reduced is a right for taxpayers not an option, and therefore they may request for them to be used by filing applications for corrections of self-assessments filed in the voluntary period.

Numerous tax measures approved before year end

Among the tax legislation approved in December 2022 were the General Budget Law, the Startups Law and the Law for the establishment of temporary charges on energy and for credit institutions and credit financial establishments, and creating the temporary solidarity tax on large fortunes. Of the numerous tax measures in these laws, a few take effect in 2022, such as the solidarity tax. Additionally, the order approving all the procedural requirements related to the tax on non-reusable plastic packaging has been published and came into force on January 1, 2023.

For further details on this month’s judgments, decisions, resolutions and legislation, SEE THE WHOLE NEWSLETTER HERE.