Alberto Pérez Pardo, International Tax Expert, explains clearly timely and in Spain Tax Amnesty for all those who have undeclared foreign assets and the opportunity that this amnesty means for them to circulate legally in the financial circuit.Subject of great importance for our Spanish readers.
It is a fundamental principle of the rule of law the obligation of all citizens and residents to help support loads State , a principle enshrined in Title I, article 31 of the Spanish Constitution: «All contribute to the maintenance of public expenditure according to their economic capacity through a fair tax system based on the principles of equality and progressive. «
Entrepreneurs, savers and workers contribute their contributions to sustaining the needs of your company.
A separate issue is the requirement of a fiscal or logical tax collection, efficient and fair, to fund political action based on knowledge, rigor, honesty and ethics , this, together with the demand for a state machine small size , which does not absorb the financing needs of private productive .
The measures of «tax amnesty» contained in the RDL 12/2012 issued by the Spanish Government, show the extreme weakness of the economic policy based on the inefficiency of spending and collection management repressive.
Before going into the details of these measures, it should be noted a previous incident, happened by filing an Appeal before the Court and other Unconstitutional before the Constitutional Court , by the Socialist Party. Having come into effect the deadline for receiving the benefits of the Act and not having uttered the High Court or the Constitutional Court regarding a temporary suspension of the validity thereof, thus raises a draft deep reflection, that is, the consequences for taxpayers regularized, in the event that an eventual judgment of such courts declared unlawful or unconstitutional that law, cancellation.
It is reasonable to fear that the taxpayer regularized under the legal umbrella of the Act, would be unprotected and at the mercy of the repressive action of the Administration or of justice , producing a perverse effect not considered or proposed by the legislature.
Therefore it is required a comprehensive legal framework and clear, devoid of improvisation and with broad political support legislative , while quick and clear statement by the TC, at least in terms of the precautionary suspension of all or part of the Royal Decree Law Such interim suspension mechanism would play a stabilizing role of legal certainty.
An important aspect to consider in the analysis of this legislative initiative is the strict circumscription of these measures toTaxes on Income and on corporate , so, depending on whether the regularization may emerge, unquestionably, fiscal responsibilities Taxes on other as VAT, Capital Transfer Tax, Stamp Duty and Inheritance and Gift Tax, closely linked to regularize operations and eventually not time-barred, it would be logical, then, if not also have prescribed the responsibilities of Taxes on Income and Corporation, which would render eligible for voluntary adjustment.
Moreover, although the legislator, to facilitate the success of its purposes, absolves from criminal responsibility to voluntarily regularized, is arguably the scope of the power of exemption from criminal responsibility under this regulation having the force of Royal Decree Law, in collision with Article 86 of the Spanish Constitution , which states that the Royal Decree shall not affect «….. the rights, duties and freedoms of citizens contained in Title I …. «(in this case, as enshrined in Article 31 EC) and because it is subordinate to legislation Law , with no legal capacity invasive criminal matters and judicial.
Moreover, this RDL explicitly refers to tax Crime exclusively so on Money Laundering Offenses, the regularized be at the mercy of the interpretation of the fine line of the wide fiscal Crime criminalization of money capital.
All this is not being limited.
Royal Decree Act 12/2012
The measures known as «tax amnesty» are contained in Royal Decree Law 12/2012 and its development by ministerial order.
Being in effect from 4 June 2012 until 30 November 2012.
These measures can be grouped into three blocks:
REPATRIATION WITHOUT ADJUSTMENT MANDATORY
Holders of accounts, deposits, assets or rights of any nature outside undeclared, prior to December 31, 2010, shall be eligible for voluntary regularization paying 10% of their value. Repatriation is not enforceable under the free movement of capital.
RETURN OF EARNINGS DISTRIBUTED SUBSIDIARY-PARENT
The subsidiaries of Spanish companies that do not qualify for the benefits of International Double Taxation Treaty, because the territory or country in which it is established (generally considered to be tax havens), will distribute the dividends to its parent, a cost of 8%, reducing the tax burden from the 30% who normally taxed at 22%. It can be seen in this part of the standard an invitation to big companies, with subsidiaries in tax havens, which through moments of difficulty financing organized markets, to distribute the undistributed income and repatriated to Spain, improving its funding battered own resources in a time of crisis in the financial markets.
CASH ADJUSTMENT OF INTERIOR
In relation to the cash inside or rooted in the Spanish State, regularization is allowed a tax charge of 10%, with the only requirement that states that hold cash prior to December 31, 2010. Being able regularized electronically.
In conclusion, it is noteworthy that opens the opportunity to opaque asset holders, to regularize them and put them into circulation in the financial circuit, taking advantage of a favorable economic climate for certain investments.
It should also take into account the legal framework increasingly restrictive European and international perspectives and little tolerance culture «off shore», sometimes by ideological considerations and more by the strong pressure from certain countries around the world, grouped into powerful parallel multilateral organizations, such as the «FATF» (Group d’Action Financière International), the «FATF» (Financial Action Task Force) or «APG» (Asia Pacific Group on Money Laundering), all of them closely, what increases the interest and opportunity for regularized on very favorable terms.
It should be noted that Hong Kong is a member of the FATF and APG.
From all this, it follows that qualify for the tax adjustment, known as «tax amnesty» is delicate and complex matter requiring action and intervention prudent professional experts in domestic and international tax matters.