Tax Newsletter - March 2014

The infringement on EU law is based on the absence of a ―specific purpose,‖ other than a merely budgetary objective for the tax, the establishment of which is precluded by the excise tax directive.

The absence of limitation of the temporal effects of the judgment would mean that those effects should not be confined to open fiscal years or to claims on which a final decision has not yet been made in order for affected parties to request a refund of the tax paid contrary to EU law, although the procedural channels differ in each case depending on whether they involve open or statute-barred years. Consequently, this opens the door to applications for a refund of amounts incorrectly paid over or, alternatively, to the procedure for claiming economic liability of the State, as the case may be.

In any case, the taxpayer will have to prove that it has borne the tax through the relevant invoice just as it will have to prove the damage caused.

Also worth noting is that EU case law does not authorize, save for in exceptional circumstances, the refund of the tax incorrectly charged if it is proven that the person obliged to pay it has actually charged it to other parties, because in those circumstances granting the refund to the one that charged it could lead to a situation of unjust enrichment.

In short, now that the CJEU has handed down the judgment, there are various questions that will have to be analyzed and addressed in each case, both as regards the enforcement phase of the administrative or court decision finding the refund justified, and as regards possible new applications for a refund of taxes paid in statute-barred years. The scope of cases and problems can be very diverse and although the judgment handed down by the CJEU is emphatic as regards the infringement by IVMDH of EU law, the actual refund of the IVMDH borne will largely depend on the appropriate processing of the refund application and, in particular, on the provision of proof that the legal requirements for the refund are met.

I. Judgments 4

• 1. Corporate income tax.- Exemption for the avoidance of international double taxation of Brazilian ―juros‖ (National Appellate Court. Judgment of February 27, 2014)
• 2. Corporate income tax.- Advance taxation of unrealized capital gains.- Taxation of unrealized gains is valid to ensure the exercise of the taxing power (Court of Justice of the European Union. Judgment of January 23, 2014 in case 164/12)
• 3. Corporate income tax.- Where a taxpayer has received subsidies for R&D activity, the burden of proof of the nature of that activity is on the tax authorities (Supreme Court. Judgment of January 12, 2004)
• 4. Transfer and stamp tax and inheritance and gift tax.- A gift with assumption of mortgage debt has a dual nature: with and without consideration (Castilla-León High Court. Judgment of November 29, 2013)
• 5. Tax on retail sales of certain oil and gas products (IVMDH).- IVMDH is contrary to Directive 92/12 on excise duties, as it does not pursue a specific purpose (CJEU. Judgment of February 27, 2014 in case C-82/12)
• 6. Turnover tax.– A tax on turnover that mostly affects companies with linked undertakings in another Member State can be contrary to the freedom of establishment (Court of Justice of the European Union. Judgment of February 5, 2014, in case 385/12)
• 7. Inspection proceeding.- The duration of proceedings which are resumed after becoming final in the criminal jurisdiction cannot exceed 12 months bearing in mind the time elapsed before they were referred to the Public Prosecutor’s Office (National Appellate Court. Judgments of October 17, 2013 and January 20, 2014)
• 8. Collection proceeding.- The enforced collection surcharge can only be charged once and cannot be multiplied according to the number of joint and several liable parties (Castilla la Mancha High Court. Judgment of October 30, 2013)

II. Decisions and rulings

• 1. Corporate income tax.- Indemnity received as a consequence of provisional enforcement of a judgment is not revenue until judgment is final (Directorate-General of Taxes. Ruling V0115-14, of January 20, 2014)
• 2. Corporate income tax and VAT.- Validity of the invoices received by e-mail or platforms (Directorate-General of Taxes. Ruling V0068-14, of January 15, 2014)
• 3. Personal income tax.- The timing of recognition of forward transactions or transactions with a deferred price is an election that must be made on time (Directorate-General of Taxes. Ruling V0151-14, of January 23, 2014)
• 4. Personal income tax.- The application of the timing of recognition rules for collection and payments is independent from the VAT treatment of the transaction (Directorate-General of Taxes. Rulings V0121-14, of January 21, 2014, and V0122-14, of January 21, 2014)
• 5. Personal income tax.- The change of currency of a loan from Japanese yen to Swiss francs can give rise to a capital gain or loss (Directorate-General of Taxes. Ruling V0104-14, of January 20, 2014)
• 6. Personal income tax.- The tax credit for lease of the principal residence does not require a minimum stay in the residence (Directorate-General of Taxes. Ruling V0101-14, of January 20, 2014)

III. Legislation

• 1. Payment of debts using the procedure of direct debit through the non-advanced signature system (PIN24h)
• 2. Refinancing and restructuring of the corporate debt
• 3. Average traded value for the fourth quarter of 2013 of securities traded on organized markets for wealth tax purposes
• 4. ―Tax Lease‖: transitional provision
• 5. Tax benefits to repair damage caused to the Atlantic seaboard and the Cantabrian coast by wind storms and hurricanes
• 6. ―Exemption thresholds‖ and ―statistical thresholds‖ for 2014 relating to the intra-Community trade statistics

IV. Others

• 1. Reform of the Spanish Tax System: Report of the Committee of Experts
• 2. Form 720: answers to frequently asked questions on the State Tax Agency’s website
• 3. Foreign companies that are sole shareholders of Spanish companies: need for a taxpayer identification number or a foreigner identification number (Decision of the Directorate-General of Registrars and of the Notary Profession of January 20, 2014)