Law 11/2021 of July 9, ‘Measures for the Prevention of and Fight against Tax Fraud’, was published in the BOE on July 10. This Law , among other amendments, has introduced in Law 58/2003 of December 17, ‘General Tax Law’ (known as the LGT) a new obligation aimed at manufacturers, producers and marketers of accounting and business management computer programs, also affecting the users of these programs. The programs must comply with certain requirements to ensure that their manipulation is not allowed.
This modification will take effect from 11 October 2021 – entering into force, as indicated by Law 11/2021 itself, three months from its date of publication.
A specific sanctioning regime has also been introduced for non-compliance with this new obligation, adding a new article (201 bis) to the LGT.
The new obligation affects producers, marketers and users of computer or electronic systems and programs that support accounting, billing, or management processes of those who carry out economic activities – so as to guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records, without interpolations, omissions or alterations of which the due annotation is not left in them. (As noted in new section j) of Article 29.2 of the LGT.)
However, the wording of the article does not indicate what kind of technical specifications these systems and programs must meet. It also leaves open the requirement that they have a specific certification or the use of standard formats for readability (referring to a subsequent regulatory development). It should be noted that this regulation is not mandatory, as it expressly states “Technical specifications may be established by regulation”, but no guidance in this sense has been published.
We are therefore facing an indeterminate regulation, as it does not provide or clarify the technical criteria to be enforced on these programs. Consequently, there are no definitions on what would constitute a breach of regulation – which is troubling, particularly when non-compliance implies a tax infraction punishable by a fine of €50,000 to €150,000.
The specific wording of the new Article 201 bis, although clarifying the circumstances that must exist in computer systems to consider that an infringement has been committed, does not define its technical scope.
“Article 201 bis. Tax infringement for manufacturing, production, marketing and possession of computer systems that do not meet the specifications required by the applicable regulations.
The manufacture, production and marketing of computer or electronic systems and programs that support the accounting, billing or management processes by the persons or entities that carry out economic activities constitutes a tax infringement, when any of the following circumstances occur:
- allow different accounts to be kept in the terms of article 200.1.d) of this Law;
- allow the recording of transactions carried out not to be reflected, in whole or in part;
- allow transactions other than the entries made to be recorded;
- allow to alter transactions already registered in breach of the applicable regulations;
- do not comply with the technical specifications that guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records, as well as their legibility by the competent bodies of the Tax Administration, in the terms of article 29.2.j) of this Law;
- systems manufactured, produced or placed on the market are not certified, being obliged to do so by regulation provision.
The possession of computer or electronic systems or programs that do not comply with the provisions of article 29.2.j) of this Law constitutes a tax infraction, when they are not duly certified, having to be certified by regulatory provision or when the certified devices have been altered or modified.”
Without clarification of the technical requirements that these computer programs must meet before the new obligation enters into force on 11 October, we face legal uncertainty – although, in accordance with article 29.2 j), this regulatory development is not mandatory.
What does seem clear is that, in the face of this new obligation and its sanctioning regime, these accounting, invoicing and management systems must be examined to ensure that they do not breach the circumstances indicated in article 201 bis.1 and 2, above, and do not give any cause to consider that a tax infraction has been committed.
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