It is no longer possible to request a deferral during the voluntary period if it was previously denied
Recently, the Central Economic-Administrative Court (TEAC) issued a ruling regarding payment deferrals and installments, tightening the rules for granting such arrangements. In ruling no. 00/1430/2015 of September 30, 2015, the TEAC explains what happens when a request for payment deferral or installment is denied, and the taxpayer is granted a period for voluntary payment of the debt.
The criteria adopted by the Tax Agency before the TEAC ruling:
Previously, when a request for installment payments or deferral was denied, the taxpayer could choose to reapply within the voluntary payment period granted, or file an appeal against the denial. Since the appeal process was largely ineffective and taxpayers often had to resort to the administrative appeals process, which could take one or two years to resolve—by which time the debt would likely have been paid—most taxpayers opted to reapply within the voluntary payment period.
The tax authorities could reconsider and grant the request for payment in installments and deferral of the debt, considering that it had been requested during the voluntary payment period, thus preventing the start of the enforcement period. Consequently, no enforcement surcharge was applied to the deferred debt; only late payment interest was applicable, since the new request had been made during the voluntary payment period.
This criterion was based on article 65.5 of Law 58/2003, of December 17, General Tax Law, "the presentation of a new request for deferral or installment payment in the voluntary period will prevent the start of the enforcement period, but not the accrual of late payment interest.".
The criterion adopted by the Tax Agency before the TEAC resolution (from 2016 onwards):
Currently, if the taxpayer has received a denial of a deferral and decides to submit another request for deferral or installment payment within the voluntary payment period granted, intending that this request be considered as made voluntarily, the response from the Tax Agency, from now on, will be "NO", and the debt will be enforced if the payment has not been made before the voluntary period.
Articles 51 and 52 of the General Tax Regulations (RGR) govern the processing of applications for deferrals and installment payments. Specifically, Article 52.4 RGR sets out the procedure to be followed once a deferral/installment payment request submitted during the voluntary payment period has been denied. It states that “if the decision issued is a denial, a voluntary payment period will be opened for the taxpayer to make the payment, and if payment is not made within this period, the enforcement period will begin and the collection procedure must be initiated.
Therefore, if, after the denial of the deferral, the taxpayer again requests a deferral of the debt during the voluntary payment period, without the debt having been paid within that period, once the voluntary payment period has ended, the enforcement period and the corresponding collection proceedings will begin, with the issuance of the corresponding enforcement orders. Thus, if the Tax Authorities reconsider and grant a deferral of a new request made during the voluntary payment period, the debt will already be subject to enforcement proceedings with the corresponding enforcement surcharge.
Furthermore, according to the TEAC resolution, the taxpayer will no longer be able to submit a new deferral request seeking reconsideration of the denial, and will only be able to file an appeal for reconsideration or an economic-administrative claim. Article 52.5 of the General Tax Regulations states that “against the denial of requests for deferral or installment payments, only the corresponding appeal for reconsideration or an economic-administrative claim may be filed under the terms and with the effects established in the applicable regulations.
However, the fact that the agreement denying the deferral/installment payment was appealed does not impede the start of the enforcement period and enforcement procedure, since the filing of appeals and claims does not suspend the execution of the contested acts unless the suspension has been granted.
Conclusions
: We have concluded that, from now on, the denial of a payment deferral will not allow for a new deferral request during the voluntary payment period, and will only be subject to an appeal for reconsideration or an administrative appeal. Furthermore, to prevent debts from being subject to enforcement proceedings, the taxpayer must pay the debt within the voluntary payment period notified in the denial of the payment plan.
This is the criterion that the Tax Office will apply to taxpayers starting in 2016. Consequently, this makes it very difficult for taxpayers to pay their debts during the voluntary payment period.
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Maribel Isart
Fiscal Area
Àmbit Assesor
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