06 Marzo, 2015

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Law of 7/2012 of 29th of October 2012 to fight tax fraud.

The Spanish Parliament has issued a new law published in the official paper on the 30th of October 2012.

This Act is the counterbalance of the former decision of the Spanish Government to provide a tax amnesty.

The Spanish voluntary disclosure procedure, not officially named “amnesty”, is accessible to any individual or company, either resident or non-resident in Spain and who has undeclared income or gains on the 31st of December 2010.

In general, those already subject of an investigation are not be able to benefit from this.

Those taxpayers choosing to implement the amnesty must present a tax return informing of the assets and income to be declared and a 10% tax payment of 10% of the undeclared assets by the 30th of November 2012. This tax return is not subject to further tax and the taxpayer is released from any penalties, surcharges and interest.

All taxes are not covered by this disclosure procedure, such as: transfer tax, municipal taxes, wealth tax (up to 2007), inheritance, gift tax, and VAT.

The Act 7/2012 on measures to fight tax evasion has the following provisions:

1) Reporting of overseas investments

Taxpayers are to communicate all investments made internationally (this includes accounts, shares, and insurance policies), where they are owners, beneficiaries or nominated as authorised persons.
The penalty for not communicating this is €5,000 for each undeclared piece of information or set of data, with a minimum of €10,000.
Since there is no statute of limitations the tax authorities will be able to revert indefinitely to evaluate any income not declared.

Any wealth not declared will be considered as income yielded in one year subject to a 150% fine on the resulting tax unless the taxpayer proves that this wealth was acquired with a regular declared income or at a time when the taxpayer was not obliged to declare it according to the Spanish Income Tax Law.

2) Limit to cash transactions

Cash transactions involving a professional or a business will be limited to €2,500 (credit institutions are excluded). For non-residents in Spain it is limited to €15,000.
The penalty for not yielding the information is 25% of the cash payment. Both the payer and the recipient are jointly and severally liable, meaning that the authorities can investigate either party. Should one of the parties willingly provide the information to the tax authorities (Hacienda) of a breach of this rule within 3 months of the cash payment they will be exonerated and the penalty will not be applied.

3) Change in taxation of the transfer of company shares owners of a property in Spain

The previous objective system consisted in a regulation where it was clear for the taxpayer when the transfer of the shares were subject to the tax in Spain and when it was exempt.
With the present regulation the tax must be requested when the taxpayer’s intention is to avoid the purchase tax payment that should have been paid when purchasing a property. It is a subjective criterion and is difficult for the taxpayer to prove his intention when the shares were bought and not the property. 

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