A recent resolution of the Central Economic-Administrative Court (Resource 00/03869/2020 of 21 May 2021) has unified the criterion in relation to the neglect by the taxpayer of the Information Requirements of the AEAT received in the electronic mailbox.
The criterion established by the Central Economic-Administrative Court (or TEAC) has been: “Having the notification of a request for information deemed rejected as a result of not accessing its content in the terms provided for in the regulations governing notifications by electronic means, the subjective element necessary for the purpose of imposing the penalty for the infraction typified in article 203 of the General Tax Law (LGT) may be met, without prejudice, to the fact that the circumstances of exemption from liability referred to in article 179 of the same rule may be assessed, where appropriate.”
The TEAC has understood that the neglect can suppose “resistance, obstruction, excuse or refusal” to the requests of the Tax Administration – that it is not necessary to prove the intention to circumvent the request, it is sufficient that notification was sent properly. The Tribunal considers that the subjective element of the infringement provided for in article 203 of the LGT concurs – a notification of request for information is considered rejected if its content is not accessed in accordance with the regulations governing notifications by electronic means.
The case analysed by the TEAC concerned a taxpayer who appealed against a penalty of €10,000 imposed for failing to access the electronic mailbox of the email address provided to the AEAT within 10 calendar days. This occurred on three separate occasions, following electronic requests for information sent by the AEAT.
The taxpayer appealed the sanction and filed an Economic-Administrative Claim before the Regional Court of Madrid (TEAR). The claim stated that there must be guilt and clear specific intention for the sanction to be enforced, which did not exist in this case as the taxpayer did not have real knowledge of the existence of AEAT requests because he never accessed his electronic mailbox, due to a lack of means. TEAR annulled the sanction on the grounds that, although the request had been duly notified, it had not been proved that the taxpayer had agreed to it or had real knowledge of its nature. Therefore, there was no specific intention to hinder the AEAT.
The Directorate of the Department of Financial and Tax Inspection of the Tax Agency clearly does not share the opinion of the TEAR – it raised an extraordinary appeal to the TEAC for unification of criteria. It considers that, in order to impose the sanction, it is necessary that the taxpayer had a “real knowledge” of the requirement and the need for his conduct to be aimed at delaying, hindering or preventing the actions of the Tax Administration in the fulfilment of its obligations.
The TEAC responded that, for the imposition of the sanction of article 203 of the LGT, it is sufficient to have a “formal” knowledge of the notification in accordance with the law, and not a “real” knowledge that the notification had taken place, without the need for a specific intention to delay the actions of the Administration by not complying with requirements.
The taxpayer is informed of their inclusion in the mandatory system of electronic notifications, and cannot avoid access to their electronic address or to the electronic headquarters of the Tax Agency, as they have to access it periodically (at least every 10 calendar days) in order to that electronic notifications are not understood to have been rejected.
The consequences of this ruling according to the criterion adopted by the TEAC, could involve penalties for serious infringement, established in article 203 of the General Tax Law: failure to meet a duly notified requirement could lead to fines ranging from 150–600,000 euros.
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