Compulsory online tax returns
| Autor | Ana María Delgado García |
| Cargo | Professor of Tax Law |
| Páginas | 22-36 |
IDP no. 21 (December 2015) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
www.uoc.edu/idp
Submission date: August 2015
Accepted date: November 2015
Published in: December 2015
Universitat Oberta de Catalunya
Abstract
In general, submitting tax returns online is optional for taxpayers. Nonetheless, legislation provides for
online submission to be made compulsory in certain cases, for taxpayers for whom, due to their economic
or technical capacity, professional activity or other accepted factors, access to and the availability of the
necessary technological resources are guaranteed. In that regard, it must be borne in mind that some
taxpayers, particularly individuals, do not have the technical and economic resources to submit returns
online. One of a number of measures geared towards making submission easier for such taxpayers consists
of allowing returns to be submitted on behalf of third parties in the context of social collaboration in the
collection of taxes. Such collaboration takes on greater importance in cases in which online interaction
with the tax authorities is compulsory.
Keywords
tax returns, taxpayers, online submission, electronic administration
Topic
taxation
Las declaraciones tributarias telemáticas obligatorias
Resumen
En general, para los contribuyentes es opcional presentar declaraciones de impuestos por internet. Sin
embargo, la legislación prevé que la entrega por Internet sea obligatoria en ciertos casos, para los con-
tribuyentes a los que, debido a sus capacidades económicas o técnicas, actividades profesionales u otros
factores aceptados, se les garantiza el acceso y la disponibilidad de los recursos tecnológicos necesarios.
A este respecto hay que tener presente que algunos contribuyentes, sobre todo particulares, no tienen
los recursos tecnológicos o económicos para presentar declaraciones por Internet. Una de las muchas
ARTICLE
Compulsory online tax returns
Ana María Delgado García
Professor of Tax Law
Director of Legal Studies and Political Science
Director of the Master in Taxation
UOC
Ana María Delgado García
22
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medidas que se han orientado para facilitarles la entrega consiste en permitir que las declaraciones se
presenten en nombre de terceros, en el contexto de la colaboración social en la recaudación de impuestos.
Esta colaboración cobra mayor importancia en los casos en los que es obligatoria la interacción por
internet con las autoridades tributarias.
Palabras clave
declaración de impuestos, contribuyentes, presentación por Internet, administración electrónica
Tema
fiscalidad
Introduction
What is referred to as e-government constitutes the
modernisation of administrative processes on the basis
of the possibilities that information and communication
technologies (ICTs) offer in the more general context
of the information society, as it is known. The purpose
of e-government encompasses providing better public
services, reducing waiting times, allowing for funds to be
used more effectively, increasing productivity and enhancing
transparency and accountability.
The provision of online services in conditions of availability,
accessibility, trust, security, privacy and interoperability is a
particularly significant aspect of e-government.
The meaning of e-government is no different in relation
to tax than to any other sector.
1
Its intended purpose is
the same, as are the methods used. The Spanish tax
authorities, however, have been particularly active in the
long, complicated process of applying ICTs to its work.
Final provision five of Law 66/1997, of 30
th
December, on
fiscal, administrative and social order measures, entailed
an important advance in tax-related e-government. It
authorised the Minister of the Economy and Finance to
establish, via a ministerial order, the cases and conditions
in which large companies would be required to fulfil their
formal tax obligations online, a matter further developed
in the Order of 29
th
June 1998.
2
Online submission had initially been envisaged as an
option. The possibility of making the online submission of
applications and correspondence to the Spanish government
and its public bodies generally compulsory for certain
individuals and organisations therefore constitutes a turning
point in the development of e-government.
3
In that context, it is very important to regulate the cases in
which third parties can help citizens conduct their online
dealings with the administration. With regard to tax, the
system of representation and social collaboration in the
collection of taxes is particularly noteworthy when it comes
1. As pointed out by M. Vizcaíno Calderón (2004, pp. 575 et seq).
2. Later, the Order of 13th April 1999 on the online submission of personal income tax returns, under which digital signatures were first used
in tax procedures, was issued on the basis of the authorisation contained in Article 79.5 of Law 40/1998, of 9th December, on personal
income tax, and in accordance with the provisions of Article 59.3 of Royal Decree 214/1999, of 5th February, which approves the regulations
applicable to the tax in question. Since then, numerous provisions have authorised the use of online procedures for submitting returns for
many taxes, as well as electronic payments corresponding thereto.
3. Law 24/2001, of 27th December, on fiscal, administrative and social order measures, added a new provision, number 18, to Law 30/1992, of
26th November, on the legal system applicable to the public authorities and common administrative procedure. This new provision made
the online submission of applications, correspondence and the required complementary documentation compulsory for companies with
over a hundred employees or deemed large companies for VAT purposes, and for all institutions or bodies governed by public law, in the
cases and conditions to be stipulated via an order issued by the corresponding minister. It also established a second, similar rule in relation
to individuals, organisations and associations not covered by the first and belonging to groups or sectors in which such methods and
resources are routinely used. In addition to stipulating the aforementioned cases and conditions, any such ministerial order would have to
accredit that the requirement to interact online in no way restricted or discriminated against the members of the relevant group or sector.
On this topic, see A. M. Delgado García and R. Oliver Cuello (2005, pp. 47 et seq). Also see A. M. Delgado García (2009, pp. 119 et seq).
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to the online submission of returns, correspondence and
other tax-related documents to be processed by the Spanish
Tax. The system in question is governed by Royal Decree
1377/2002, of 20
th
December, and is also referred to by Article
92.4 of Law 58/2003, of 17
th
December, which approves
the Spanish taxation code (Ley General Tributaria or LGT).
It should be noted that the Spanish Tax Agency (Agencia
Estatal de Administración Tributaria or AEAT) is one of
Europe’s more pioneering public authorities in terms of
the use of ICTs in its dealings with citizens. Promoting and
facilitating access to ICTs for all citizens is one of the main
issues deemed crucial for the effective development of
e-government plans, generally speaking.
The number of computer users in Spain is rising gradually,
but not sufficiently for a significant figure to have been
attained. It is vital that the country adopt public policies that
prevent the creation of imbalances, not only in technological
expertise (the so-called digital divide), but also in terms of
social and economic inequalities, which might exacerbate
its existing social and economic divide.
The application of new technologies to dealings between
the administration and taxpayers is of great importance
in relation to the former’s duty to provide the latter with
information and assistance, as well as with regard to tax
procedures, and certain of them in particular, such as tax
collection. The main purposes for which new technologies
are used in tax procedures are submitting tax returns and
making the corresponding payments, issuing tax-related
notifications and appealing against tax-related actions.
4
1. The submission and payment
of tax returns online
The online submission of returns undoubtedly stands out
among all the tax-related services for which the internet
is used. The advantages of online communication with the
tax authority include reductions in compliance costs, as the
system is a more convenient way for taxpayers to submit
their returns; in the tax authority’s administrative workload,
due to certain recording and processing tasks and paperwork
in general being unnecessary; in the time taken to process
returns; and in the time taken to process and detect the
evolution of economic variables, allowing for more accurate
monitoring of overall and sector-by-sector tax collection.
In Spain, tax returns can be submitted online and the
corresponding payments made in the same way. Furthermore,
it is not only possible for taxable persons to settle their
tax debts via the internet, but also for the administration
itself to settle such debts. Article 60.1 of the LGT states
that “the requisites and conditions for payment to be made
using electronic, computerised or telematic methods and
resources shall be governed by tax regulations”.
For most types of state taxes, it is currently possible to
submit returns and self-assessments online, as well as
to make the corresponding payments via the internet, if
applicable, not only in relation to actual taxable events but
also to withholdings, payments on account and instalments,
and even to reporting obligations.
According to the Order HAP/800/2014, of 9
th
May,
which establishes specific rules on identification and
authentication systems electronically with the Spanish
Tax Agency, the forms of identification and authentication
accepted by the Tax Agency will be the electronic National
Identity Document and the system’s advanced electronic
signature based on electronic certificates accepted by the
general administration of the State, in accordance with
the provisions of Law 11/2007, of 22
nd
June, on citizens’
electronic access to public services.
5
Order HAP/2194/2013, of 22
nd
November, which regulates
the procedures and general conditions for the submission
of certain self-assessments and tax information returns,
4. In relation to all these topics, see A. Angulo Cascán (2000, pp. 601 et seq.) ; J. Hortalà Vallvé and J. Ibáñez Peña (2001); S. Segarra Tormo
(2000, pp. 583 et seq.); S. Ruiz Gallud (2001, pp. 379 et seq.); and I. Rovira Ferrer (2009, pp. 203 et seq).
5. Article 3.1 of Law 59/2003, of 19th December, on electronic signatures, defines an electronic signature as a set of data, in electronic form,
sent together or associated with other data, and which can be used as a means of identifying the signatory. Along with the general concept
of electronic signatures, the aforementioned law, in Article 3.2, defines a specific class that it calls the “advanced electronic signature”,
which is characterised by meeting particular security requirements. Such an electronic signature makes it possible to identify the signatory
and detect any alteration to the signed data, is linked to the signatory and the data to which it refers in a unique manner, and is created
using means that the signatory can keep under their exclusive control.
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establishes a common regulatory system of online
submission of self-assessments and information returns. It
is a norm that consolidates existing regulation and avoids
regulatory dispersion. In our view, this Order helps to clarify
and simplify the application of the tax rules, which results
in greater legal certainty.
6
For taxpayers to use the internet to submit self-assessments
that require them to make a payment, they must pay
the relevant amount beforehand and obtain a complete
reference number (número de referencia completo or NRC)
that serves as proof of having done so. The procedure to
follow to that end is described in the following paragraphs.7
Firstly, the taxpayer must contact a financial institution
collaborating in the tax collection process, either in person
on its premises or online (via an e-banking service or the
Spanish Tax Agency’s electronic office; in the latter case,
they may do so themselves or a social collaborator may do
so on their behalf), to obtain a set of data related to the
self-assessment on the basis of which they are to make
the payment.
Upon accessing the Tax Agency’s electronic office, the
taxpayers must select the self-assessment and tax payment
option, the relevant return form and whether they wish to
pay by debiting their bank account or by credit or debit card
(in which case they will need to specify the card’s issuer).
They must also provide the details of their self-assessment
and of their bank account or card. They have to use their
electronic certificate to sign all the data entered, bearing
in mind that the holder of the certificate and the holder
of the aforementioned bank account or card must be one
and the same.
The procedure is the same for the online submission of
self-assessments with applications for offsetting, to defer
or spread payment, for simple acknowledgement of debt
or for entries in tax current accounts.
Secondly, once the taxpayers’ payment has been registered,
the financial institution collaborating in the tax collection
process will assign the taxpayers an NRC, which they must
subsequently specify when submitting their self-assessment
online. The financial institution will also issue the taxpayers
with a receipt for their payment, to show that they have
cleared their debt to the Tax Agency and enable the tax
authority to verify that the said payment has been made.
Each NRC is generated by a computerised cryptographic
system that univocally links it to the amount payable.
However, it is not necessary to obtain an NRC in the case
of payment of the amount due being deferred through a
direct debit arrangement. Logically, it is also unnecessary
to obtain an NRC when a self-assessment gives rise to a
reimbursement, with a refund application or waiver. In such
cases, the taxpayers should move directly on to the next
stage of the online submission procedure.
Having carried out the necessary transaction and, if
applicable, obtained the corresponding NRC, the third step
is for the taxpayers to access the Spanish Tax Agency’s
electronic office to submit their return, on the same date
as making their payment or, if applicable, their refund
application.
8
In the virtual office’s section for submitting
returns, the taxpayers must select the return form and type
(payable, refundable, offsettable, no activity or balanced
outcome, payable by direct debit, payment to be recorded in
tax current account, application to defer or spread payment,
acknowledgement of debt, etc.), as well as the electronic
certificate.
Next, the taxpayers must enter the data requested on the
form displayed on the return screen. They have the option
of importing that data from a file if they have prepared their
return using a support programme, as well as the option
of reading the NRC assigned by the collaborating financial
institution from a file. Self-assessments can be submitted
in batches if there are various of the same type to be sent.
The online submission of a self-assessment should take
place on the same date as the payment corresponding
thereto is made. It is thus possible to deem the payment
and the submission of the self-assessment as simultaneous,
in the sense that they occur on the same day, although in
reality the payment is made first and the self-assessment
submitted later.
6. On this matter, see R. Oliver Cuello (2014, pp. 5 et seq).
7. For a more detailed analysis of this subject, see A. Delgado García; R. Oliver Cuello (2001, pp. 112 et seq).
8. In this regard, it must be borne in mind that, as applies to other submission methods, taxpayers may use the internet to spontaneously submit
self-assessments outside the voluntary payment period in two cases, namely to make up for failing to submit a previous self-assessment
or to modify one already submitted.
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If, however, for technical reasons it is not possible to submit
a self-assessment on the day on which the corresponding
payment is made, it may be submitted online up to four
calendar days after the date of the payment.
In relation to such a situation, it should be noted that, if the
taxpayers make the necessary payment on the final day of
the voluntary payment period, it is possible that they might
be unable to submit their self-assessment within the same
period, due to network overload, server problems or any
other technical difficulty. Under such circumstances, we
believe it would be possible for the taxpayers to submit their
self-assessment within the four calendar days subsequent to
the end of the voluntary payment period without suffering
legal repercussions.
However, it is necessary to consider the repercussions the
taxpayers would face if they were unable to submit their self-
assessment within the four days in question. In such cases,
with payment having already been made, we feel that they
could not be deemed to have failed to pay the tax, so it would
not be fitting to penalise them for the infringement defined
in Article 191 of the LGT, nor to claim interest for late payment
from them by way of compensation. Nonetheless, failure
to submit a self-assessment within the periods established
by tax regulations constitutes a minor infringement, as
established in Article 198 of the LGT. Clearing the debt does
not result in exemption from the duty to submit the return.
In that regard, it must be borne in mind that Article 179.2
of the LGT identifies various circumstances that result in
exoneration from liability for tax infringements. Thus, if
any of those circumstances were applicable to taxpayers,
the tax authorities could not penalise them for a minor
infringement. If, for example, the computer on which the
taxpayers had installed their electronic certificate were to
be destroyed, they could be exempt from liability on the
grounds of force majeure, as envisaged by Point b) of the
aforementioned precept. Alternatively, Point d) thereof
could apply if the taxpayers have acted with due diligence.
The fourth step to be taken by taxpayers submitting a return
online consists of generating their electronic signature so
as to be able to send the return. They must subsequently
transmit the entire return with the corresponding digital
signature (or signatures, if applicable).
9
Fifthly, once a submission has been accepted, the Tax Agency
will display the return or, if applicable, the payment or refund
document, which will be validated with an electronic code, plus
the date and time of submission, on the taxpayers’ screen. The
final step the taxpayers must take is to save the accepted return
or documents bearing the corresponding validation code.
The submission and payment of tax returns online is
therefore provided with two receipts, one for their payment
and one for their submitted return. It is important to save
both, as they prove that the taxpayers have fulfilled their
obligations to the tax authorities.
2. Optional or compulsory use
of the internet for tax purposes
One of the most relevant issues in relation to using the
internet for tax purposes is the optional or compulsory
nature of doing so to submit tax returns.
In this regard, there are no appreciable differences
between the rules set out in Law 11/2007, of 22
nd
June, on
citizens’ electronic access to public services (Ley de acceso
electrónico de los ciudadanos a los servicios públicos or
LAECSP) and in the LGT.
10
Both laws provide for internet
use being optional, except in some cases in which it may
be made compulsory for certain persons.
The optional nature of using the internet is established in
Article 27.1 of the LAECSP, which states that “citizens may
choose, at all times, how they communicate with the public
authorities, be it by electronic means or otherwise, except
in cases in which a legal instrument with the status of a law
stipulates or implies the use of a non-electronic medium.
The option of communicating via one medium or another
shall not bind the citizen thereto. They may, at any time, opt
to use a medium other than that initially chosen”.
9. It is necessary, for example, to include more than one digital signature when using the internet to submit a joint personal income tax return,
which must be signed by both spouses. Where social collaboration in the submission of returns is concerned, however, only the signature
of the submitting party is required (that of the taxpayer whom they represent is unnecessary).
10. With regard to the application of Law 11/2007, of 22nd June, on citizens’ electronic access to public services, in the tax area, see R. Oliver
Cuello (2009, pp. 19 et seq).
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Article 27.6 of the LAECSP establishes exceptions to the
aforementioned optional nature of online communication
with the public administration. It indicates that “under
regulations, the public authorities may make it compulsory
to communicate with them via electronic means only, in the
case of legal persons or groups of individuals for whom,
due to their economic or technical capacity, professional
activity or other accepted factors, access to and the
availability of the necessary technological resources are
guaranteed”.
Meanwhile, in relation to the optional or compulsory
nature of the use of the internet, Article 96.2 of the LGT
states that “when compatible with the technical resources
available to the tax authority, citizens may use electronic,
computerised or telematic methods and resources to
communicate with it to exercise their rights and fulfil their
obligations, with the guarantees and requisites envisaged
in each procedure”.
The literal wording of Article 96.2 of the LGT implies that the
use of ICTs is an option open to taxpayers in their dealings
with the tax authorities. In other words, their use is optional,
and the specific choice to use them is to be made by the
taxpayer rather than the tax authority. However, the precept
in question does not rule out making it compulsory for some
taxpayers to use the internet in certain cases.
The use of ICTs is indeed compulsory in some cases. Article
98.4 of the LGT grants the Ministry of the Economy and
Finance legal authorisation to determine, in relation to
areas over which the state has jurisdiction, “the cases
and conditions in which taxpayers must use electronic
means to submit their tax returns, self-assessments,
correspondence, applications and any other pertinent
tax-related document”.
3. Cases of compulsory online tax
return submission
Until recently, the use of the internet was only compulsory
in a few cases affecting a limited number of taxpayers and
certain taxes, basically linked to large companies. Examples
include such companies’ income tax withholdings and
payments on account, as well as monthly value added tax
(VAT) self-assessments, in accordance with the Orders of
the Ministry of the Economy and Finance of 20
th
January
1999, 22
nd
February 1999 and 30
th
July 1999.
11
Legal authorisation for the cases in question was granted
by final provision five of Law 66/1997, of 30
th
December,
on fiscal, administrative and social order measures.
Given the characteristics of the taxpayers involved in the
aforementioned cases and the extent of their dealings with
the tax authorities, it was decided to impose the use of
ICTs upon them with a view to speeding up procedures and
boosting administrative efficiency.
In recent years, however, provisions have been made for
new cases of compulsory online tax return submission,
considerably increasing the number of taxpayers affected.
The measure is thus taking on a significant scale.
It can nonetheless be maintained that, as stated previously,
the general rule is that taxpayers are free to choose which
medium to use. The compulsory use of ICTs seems unlikely
to be extended to all taxpayers until such time as these
technologies are much more widespread in Spanish society
than at present.
12
In application of the authorisation contained in Article 98.4
of the LGT, the first instance of online tax return submission
11. Additionally, Order HAC/540/2003, of 10th March, extends compulsory use of the internet to forms 218 and 222, corresponding to the
instalments paid by large companies and tax groups. Order EHA/1308/2005, of 11th May 2005, also provides for the compulsory online
submission of large companies’ VAT returns.
12. In the opinion of Orón, any ruling required on ministerial orders implementing the legal authorisation granted in Article 98.4 of the LGT
will need to take into account the social reality of the time in which they are to be applied, as a criterion for interpreting the legislation
(Article 3 of the Spanish Civil Code). As the use of new technologies becomes more generalised among citizens, there will be scope for
gradually moving from the possibility of using the internet for fulfilling tax obligations to making its use to that end compulsory, according
to the same author. Bearing in mind the percentage of the Spanish population who currently use new technologies, he believes it would be
absolutely disproportionate at present to indiscriminately impose such an obligation on those persons to pay taxes collected by the state
(and unthinkable for most local institutions, as far as the taxes they collect are concerned), unless channelled through social collaboration,
in accordance with Article 92 of the LGT, in which respect certain access requisites would also undoubtedly have to be met (G. Orón Moratal,
2007, p. 192).
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being made compulsory for taxable persons other than large
companies was that established by Order 1981/2005 of the
Ministry of the Economy and Finance, of 21
st
June, which
approved self-assessment form 576 for the special tax on
certain means of transport. All those persons to pay the tax,
whether natural or legal persons, were required to submit
the form in question online.
13
Also of note with regard to the same tax is Order
EHA/3851/2007, of 26
th
December, which established an
alternative to submitting the corresponding form online,
consisting of the tax authority making various personalised
help points available at its offices so that taxpayers with
an appointment can provide the data necessary for the
submission of their self-assessments.
However, that service is not open to all taxpayers. There
are three requisites for its use, in accordance with the
provisions of Article 3 of the aforementioned order. Firstly,
users must be individuals not included on the register of
entrepreneurs, professionals and withholders. Secondly, the
means of transport on which the tax is levied must be owned
by the taxpayers submitting the self-assessment. Thirdly,
the taxpayers must pay the tax via a financial institution
beforehand and obtain the corresponding NRC, with which
they are to provide the tax authority.
It is also compulsory to use the internet to submit some
returns related to special manufacturing taxes, tax on the
retail sale of certain hydrocarbons and transactions treated
as imports for VAT purposes (Order EHA/3548/2006, of 4
th
October, on special taxes).
Additionally, Order EHA/3398/2006, of 26th October, which
sets out measures geared towards the promotion and
standardisation of certain aspects of the online submission
of tax returns, has increased the range of annual summaries
and information returns to be submitted via the internet,
by substantially reducing (to 15, specifically) the number
of entries to be transmitted as of which it is compulsory to
submit forms 180, 190, 193, 198, 345, 347 and 349 online.
14
The online submission of returns corresponding to
corporate tax and non-resident income tax, for permanent
establishments and companies established abroad, present
in Spain and subject to the income allocation system (form
200), is compulsory for taxpayers registered with the Central
Office of High-income Taxpayers or the Large Companies
Management Units, as well as for all taxpayers operating as
public limited companies or limited companies. In addition,
corporate tax returns applicable to the tax consolidation system
for tax groups, corresponding to the state administration
(form 220), must be submitted online in all cases.
15
13. In the view of Orón, in relation to the compulsory online submission of the tax return in question, “it is disproportionate to require the
purchaser of a new vehicle (or one not yet registered in Spain) to obtain an electronic certificate or to seek the assistance of a third party,
who will charge for representing them, in order to fulfil their duty to pay tax. Furthermore, it is unclear why this was optional until December
2005 and has been compulsory since January 2006, as the control requirements involved should be the same”. He thus feels that “in
this case, it would be reasonable to make the use of new technologies compulsory for taxpayers who are entrepreneurs or professionals
who already have the resources and the duty to submit some tax returns online. However, for citizens who only feature on the register
of taxpayers, and not in that of taxable persons (Articles 2 and 3 of Royal Decree 104/2003), the use of new technologies should remain
optional” (G. Orón Moratal. cit., pp. 194-195).
14. Other cases of compulsory online tax return submission include Order EHA/3435/2007, of 23rd November, which approves self-assessment
forms 117, 123, 124, 126, 128 and 300, establishes measures for the promotion and extension of the online submission of certain self-
assessments, annual summaries and tax information returns, and makes it compulsory for taxpayers operating as public limited companies
or limited companies to submit forms 110, 115, 117, 123, 124, 126, 128, 202 and 300 online; Order EHA/3290/2008, of 6th November, which
approves forms 216 and 296 corresponding to the non-resident income tax; Order EHA/3481/2008, of 1st December, which approves form
189 for annual information returns on securities, insurance and income; and Order EHA/3788/2008, of 29th December, which approves
form 039 for reporting data, concerning the special group-of-entities system corresponding to VAT.
15. The online submission of form 201 (simplified return) was first made compulsory for public limited companies or limited companies under
Order EHA/1433/2007, of 17th May, which approved the tax return forms for corporate tax and non-resident income tax corresponding to
permanent establishments and companies established abroad, present in Spain and subject to the income allocation system for tax periods
beginning between 1st January and 31st December 2006. The following year, Order EHA/1420/2008, of 22nd May, which approved the same
forms for tax periods beginning between 1st January and 31st December 2007, made it compulsory to use the internet to submit form 220,
corresponding to the tax consolidation system (as well forms 430 and 480, for insurance fees tax self-assessments and annual summaries
respectively). Finally, Order EHA/1375/2009, of 26th May, which approved the forms for tax periods beginning between 1st January and
31st December 2008, unified tax return forms 200 and 201 to give a single general form (form 200), in which the taxable person uses a
code to specify whether they complete standard, abbreviated or small to medium-sized enterprises (SME) forms for the purpose of filing
accounts with the Registry of Companies, and is only asked for the information corresponding to whichever of those cases applies to them.
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Despite the scope of compulsory online submission having
been extended considerably, the system of requiring all
public limited companies or limited companies to use the
internet to submit their periodic self-assessments and make
the corresponding payments has been a notable success.
Virtually no incidents of any kind were recorded in the
submission of corporate tax returns for 2007 (submitted in
July 2008) or of self-assessments for the third quarter of 2008
(submitted in October 2008, the quarter in question being
the first in which their online submission was compulsory).
16
Mention must also be made of the cases in which it
is compulsory to submit VAT returns online. Order
EHA/3786/2008, of 29
th
December, approves form 303, a
single VAT self-assessment replacing forms 300, 330, 332
and 320.
17
The online submission of form 303 is compulsory
for taxpayers who submit their VAT return every month.
It is optional for taxpayers who submit their VAT return
every quarter, except for public limited companies or limited
companies, for which it is compulsory.
Moreover, it should be remembered that Article 36 of Royal
Decree 1065/2007, of 27th July, which approves the general
regulations on tax inspection and tax management activities
and procedures (Reglamento general de gestión e inspección
tributaria or RGGIT), stipulates that taxable persons who
have to submit self-assessments for VAT or the general
indirect Canary Islands tax online will be required to submit
an information return showing the content of their record
books for each tax period, including all data up to the last
day of the relevant settlement period. In general, such
taxpayers will be exempt from the duty to submit returns
corresponding to transactions with third parties (Article
32.1.e of the RGGIT).
Finally, the Order HAP/2194/2013, of 22
nd
November, which
regulates the procedures and general conditions for the
submission of certain self-assessments and tax information
returns, is important in this matter. This Order establishes
a common regulatory system of online submission of self-
assessments and information returns.
According to Article 3 of this Order, the online submission
of all self-assessments with advanced electronic signature
will be compulsory for taxpayers that have the character
of public administration or are enrolled in the Registry of
Large Companies or are assigned to the Central Office of
High-income Taxpayers, or the entities that have the legal
form of public limited companies or limited companies.
Likewise, the online submission with advanced electronic
signature will be compulsory, in any case, for taxpayers who
submit their VAT return every month. It is also compulsory
in the tax on insurance fees (form 430), whichever person
is required to submit.
It addition, the online submission of self-assessments is
mandatory for taxpayers of personal income tax who have
to submit the wealth tax.
Moreover, in connection with tax information returns, Article
13 of the Order HAP/2194/2013, of 22
nd
November, states that
the online submission with advanced electronic signature
will be compulsory for taxpayers that have the character
of public administration or are enrolled in the Registry of
Large Companies or are assigned to the Central Office of
High-income Taxpayers, or entities that have the legal form
of public limited companies or limited companies.
The online submission of the annual summary return of
VAT (form 390), according to this Order, will be compulsory
for taxpayers who submit their VAT return every month.
Online submission is also mandatory in the case of the
annual summary return of personal income tax withholdings
and payments on account of income from liquid capital
(dividends, interest, royalties); the income derived from
the transfer, redemption, reimbursement, exchange or
conversion of any kind of assets representative of uptake
and utilization of third-party capital (form 194), and the
annual summary return of insurance fees tax (form 480).
In the case of individuals in relation to the tax information
return on assets and rights located abroad (form 720), online
16. In this regard, see the comments and statistics in J. I. López Lubián (2009, pp. 7 et seq). The author in question also points out the success,
in the same area, of the tax debt direct debit procedure, the use of which has increased spectacularly.
17. Form 303 is to be used by taxpayers of VAT who are required to carry out periodic self-assessments every month or quarter. Exceptions
are made for natural or legal persons who apply the special simplified system governed by Chapter 2 of Title 9 of Law 37/1992, of 28th
December, on VAT, and for legal persons who have opted to apply the special group-of-entities system governed by Chapter 9 of Title 9
of the same law. Taxpayers to whom those exceptions apply must submit the specific self-assessment forms approved to that end for the
special systems in question.
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submission will be compulsory, according to this Order,
using for that purpose the advanced electronic signature
or the signature system with password in a previous user
registration. The individuals who submit their VAT return
every month are excluded and these taxpayers have to use,
in any case, the advanced electronic signature.
Finally, it should be noted that the submission of a self-
assessment or a tax information return by non-electronic
means, in the cases in which online submission is compulsory,
constitutes a serious offence. The sanction, in general, is
a fine of 1,500 euros, according to Article 119 of the LGT,
paragraphs 1, 2, 4 and 5.
4. Social collaboration in tax
electronic administration
With regard to this topic, it must be borne in mind that some
taxpayers, especially individuals, do not have the technical and
economic resources to submit tax returns online. Nonetheless,
to make submission easier for such taxpayers, the possibility
of tax returns being submitted on behalf of third parties in the
context of social collaboration in the collection of taxes has
been established. Alternatively, in particular cases, such as the
tax on certain means of transport, as mentioned previously,
citizen help points in the Spanish Tax Agency offices are
envisaged for the submission of the corresponding returns.
It can thus be said that social collaboration in the collection
of taxes takes on greater significance in cases in which online
interaction with the tax authority is compulsory. The great
extent to which use is made of such social collaboration,
governed by Article 92 of the LGT, constitutes a unique
feature of the tax area.
The aforementioned article, which is the first in Section 3 of
Chapter 1 of Title 3 of the LGT, sets out a series of measures
geared towards cooperation between public treasury bodies
and certain public or private bodies in the collection of taxes.
The precept in question is developed by Articles 79 to 81
of the RGGIT.
Order EHA/1433/2007, of 17
th
May, extended social
collaboration where the submission of tax return forms that
have to be sent to the tax authority online are concerned,
as well as in terms of passing on direct debit instructions,
issued beforehand by the taxable persons represented,
for the purpose of paying the corresponding tax debts.
Similarly, the Decision of the Directorate General of the
AEAT of 17
th
July 2007 extended social collaboration to
the electronic submission of applications to offset, defer
or spread payment of tax debts corresponding to returns
whose online submission is compulsory, plus the documents
that have to accompany such applications.
This is what is known as “social collaboration in the collection
of taxes”, a concept referred to in the regulations on some
taxes, such as personal income tax, corporate tax, VAT and
the tax on certain means of transport. Such collaboration
is now becoming a necessity in Spain’s complex, highly
changeable tax system, in which the onus to fulfil obligations
and duties is mainly on taxpayers.
It is thus vital that the tax authority (in the context of its
duty to provide information and assistance) and third parties
(in the context of social collaboration) put mechanisms in
place to help taxpayers fulfil their duties (and exercise their
rights). This is particularly so in cases in which taxpayers are
required to interact with the tax authority online.
The measures intended to implement social collaboration
are organised through agreements that the tax authority
establishes with bodies and institutions that represent social,
labour, business or professional interests or sectors. Such
bodies and institutions always enter into social collaboration
agreements voluntarily.
In accordance with Article 92 of the LGT, some of the forms
that social collaboration may take can be organised into
three groups. The first group comprises activities involving
producing studies or reports related to the development and
application of general provisions. The second group consists of
activities aimed at increasing the information and assistance
available to citizens as a collective, such as information
campaigns and simplifying the fulfilment of tax obligations.
The third group comprises activities designed to provide
information and assistance for citizens as individuals in
relation to the fulfilment of their tax obligations, subject
to authorisation. Those activities include providing help with
carrying out self-assessments and tax returns, with preparing
correspondence and with completing the appropriate
forms correctly; submitting and sending self-assessments,
tax returns, correspondence and any other pertinent tax-
related documents to the tax authorities; correcting errors;
providing information on the status of the processing of
refunds; and requesting and obtaining tax certificates.
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Social collaboration not only covers the stage of applying
regulations, but also that of developing them beforehand.
Some of the envisaged forms of social collaboration,
including submitting and sending tax returns, self-
assessments, correspondence and any other pertinent
tax-related documents, are generally carried out online.
Such third-party collaboration is therefore now acquiring
greater relevance due to the rapid emergence of new
ICTs (particularly the internet and email) in the field of
the collection of taxes, and will be a necessity until these
technologies are in generalised use in Spanish society.
In general, however, the necessary reinforcement of social
collaboration may not be effective unless other measures
are adopted, as the corresponding provisions are merely
programmatic.
18
Monitoring mechanisms to verify whether
the tax authority is genuinely promoting social collaboration
would thus be desirable.
Specifically, with regard to the use of the internet in social
collaboration in the collection of taxes, it is necessary to
take Article 92 of the LGT into account. Section 4 of the
said article stipulates that “the tax authority may indicate
the requisites and conditions for social collaboration to
take place through the use of electronic, computerised and
telematic methods and resources”.
It is worth noting that Article 81.2 of the RGGIT does not add
a great deal to the legislation, in stating that “in accordance
with the provisions of Article 92.4 of Law 58/2003, of 17
th
December, the General Taxation Law, the tax authority
may establish the requisites and conditions for social
collaboration to take place through the use of electronic,
computerised and telematic methods and resources”.
The same precept goes on to say that, at state level, the
Minister of the Economy and Finance shall establish, through
a ministerial order, the requisites and conditions for using
electronic, computerised and telematic methods and
resources to submit and send tax returns, correspondence
and any other pertinent tax-related documents in the
context of social collaboration agreements.
The most notable forms of social collaboration envisaged
in Article 92.3 of the LGT and in which such methods and
resources may be used include help with carrying out,
submitting and sending self-assessments, tax returns and
correspondence (paragraphs d) and e), respectively); and
providing information on the status of the processing of
refunds, and requesting and obtaining tax certificates
(paragraphs g) and h), respectively).
19
Such collaboration
thus entails the possibility of certain bodies or third parties
submitting the aforementioned documents online on behalf
of taxpayers, in accordance with the established procedure.
It should not be forgotten that, as stated, it is compulsory in
some cases to submit certain tax returns online, and there
are taxpayers, especially individuals, who do not have the
technical and economic resources to do so. Nonetheless, to
make submission easier for such taxpayers, the possibility of
tax returns being submitted on behalf of third parties in the
context of social collaboration in the collection of taxes has
been established. Alternatively, in particular cases, such as
that of the tax on certain means of transport, as mentioned
previously, citizen help points in Tax Agency offices are
envisaged for the submission of the corresponding returns.
It can thus be said that social collaboration in the collection
of taxes plays a very important role in cases in which online
interaction with the tax authority is compulsory.
The parties involved in social collaboration are the tax
authority, bodies or individuals authorised to carry out
submission online, and taxpayers. The relationships
established between them are described in the following
paragraphs.
Firstly, the aforementioned bodies or individuals must sign a
social collaboration agreement with the tax authority to be
able to engage in such collaboration. Specifically, the bodies
or individuals who may be social collaborators are listed in
Article 79.1 of the RGGIT, according to which they may be
other public authorities; bodies that are collaborators in tax
collection administration; institutions and organisations that
represent social, labour, business or professional interests
or sectors (including professional associations); bodies
that or individuals who carry out economic activities, in
18. That is the opinion of Pérez Royo and Aguallo, among others, according to whom “they are mostly guidelines without immediate legislative
force, which merely indicate possible areas of collaboration between the tax authority and “civil society” bodies or social actors. The
precept’s only specific instruction is found in Section 4 thereof, on the periodic publication of the administrative doctrine contained in
answers to queries” (F. Pérez Royo; Á. Aguallo Avilés, 1996, p. 356). Along similar lines, see T. García Luis (1996, pp. 437-438).
19. On this subject, see A. M. Delgado García and R. Oliver Cuello (2003, pp. 11 et seq).
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relation to the online submission of tax returns, data and
other documents connected to the personal income tax of
their employees and, if applicable, of the corresponding
family unit, and in relation to the provision of services and
assistance for those employees; bodies or individuals that
carry out economic activities, if their geographical location
or trade network may be conducive to the fulfilment of the
tax authority’s goals; or, lastly, other bodies or individuals
specified by the Minister of the Economy and Finance.
Secondly, in the case of a collaborator being an individual
who is a member of a professional association that has
signed a collaboration agreement with the tax authority, they
must, in principle, sign a personal document of adherence to
that agreement, in which they expressly accept the entire
content thereof (Article 79.2 of the RGGIT). However, the
signature of a collaboration agreement by a professional
association of notaries or registrars is binding for all its
members, and personal adherence thereto is unnecessary.
Thirdly, the taxpayers must authorise the collaborating body
or professional association member to submit documents
on their behalf through a power of attorney, as discussed
below. Lastly, the duly authorised third party will interact
with the tax authority in the online submission process.
Where the submission of tax documents is concerned, the
social collaborators must have a power of attorney in their
capacity as the taxpayers’ voluntary representatives, in
accordance with the provisions of Article 46.4 of the LGT. The
tax authority may request proof of that power of attorney at
any time. The social collaborators may provide such proof
by any legally valid means that establishes a reliable record,
in person before the competent administrative body or in
the ways identified in Article 111.2 of the RGGIT.
The social collaborators must also provide proof of the said
power of attorney by the same means but without being
prompted by the tax authority in the cases envisaged in
Article 46.2 of the LGT (lodging or withdrawing appeals
or claims, waiving rights, assuming or acknowledging
obligations on behalf of the taxpayer, requesting that
undue payments be refunded, and any other case in which
the signature of the taxpayer may be necessary in the
procedures governed by titles 3, 4 and 5 of the LGT).
In accordance with Article 46.7 of the LGT, the absence or
insufficiency of such a power of attorney shall not prevent
an act from being considered to have been carried out, as
long as the power is supplied or the deficiency is rectified
within the 10-day period that the competent administrative
body must allow to that end.
As Article 79.3 of the RGGIT states, the failure of a body,
institution or organisation that has signed a collaboration
agreement to fulfil its duties thereunder shall entail the
termination of the agreement, subject to the case being
examined and a hearing with the collaborator held.
The collaborators’ failure to fulfil their duties under the
personal document of adherence they have signed shall
result in their exclusion from the agreement, with the
procedure and guarantees provided for, and their personal
authorisation shall cease to be valid. In any case, the
object of social collaboration in each instance depends
on the content of the specific agreement established, so
checking its provisions will make it possible to ascertain
whether or not there has been any form of abuse thereof
or non-compliance therewith, for the purpose of seeking
accountability through private law proceedings.
In relation to the social collaborator’s liability for the
non-fulfilment or erroneous fulfilment of the taxpayer’s
obligations (a bone of contention in the legal doctrine), it
should be noted that, under the LGT, in principle, the social
collaborator is neither classed as a specific taxpayer (Article
35) or as an offender (Article 181). Furthermore, Article 17.4
of the LGT stipulates that the acts or agreements between
individuals “shall not produce legal effects in relation to
the tax authority, notwithstanding their consequences in
the private law field”.
Some light is shed on the matter in question by the
administrative doctrine contained in the Directorate General
for Tax’s Binding Consultation V0044/2005 of 18
th
January,
in relation to a social collaborator submitting the tax returns
of third parties online. It is unequivocally established therein
that the tax advisor merely submits the returns, in the role
of social collaborator, with their authorisation to represent
third parties in the context of social collaboration being
deemed to refer exclusively to submitting documents online.
Thus, the collaborator is not held to represent the taxpayer
in any additional way merely due to submitting tax returns
online.
The same consultation also establishes that “if tax returns
submitted by the advisor contain incorrect data or are not
submitted within the established period, the tax authority
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shall hold the taxpayer liable, notwithstanding the possibility
of the submitting party also being deemed liable in the case of
the applicability of any of the circumstances that Articles 42
and 43 of Law 58/2003 identify as giving rise to such liability”.
In short, in the event of such non-fulfilment or erroneous
fulfilment, only the taxpayer is answerable to the tax
authority. However, the social collaborator could be deemed
jointly or subsidiarily liable if any of the circumstances
envisaged in Articles 42 or 43 respectively of the LGT apply,
such as being the cause of or an active participant in a
tax infringement (Article 42.1.a of the LGT). Evidently, that
does not affect the taxpayer’s right to bring private law
proceedings to seek compensation for any losses caused
by the social collaborator.
In this context, it is worth pointing out that, based on the
experience of the Spanish Tax Agency, in Article 23 on forms
of representation, the LAECSP permits public authorities to
empower, generally or specifically, authorised natural or legal
persons to carry out certain electronic transactions on behalf
of third parties. It stipulates that such empowerment must
specify “the conditions and duties agreed to by those who thus
acquire representative status, and the presumption of validity
of their authorisation to act as representative, unless otherwise
envisaged in the applicable legislation. Public authorities
may request proof of such authorisation at any time”.
It is also necessary to highlight the provisions of the Decision
of the Directorate General of the AEAT of 3
rd
June 2009
on assistance for taxpayers and citizens in identifying
themselves to collaborating bodies via the internet for tax
procedure purposes and, in particular, for the payment of
debts via the debit system or by means of credit or debit cards.
According to the said decision, the satisfactory and secure
functioning of the online payment procedure and the aim of
continuing to do as much as possible to help taxpayers pay
their tax debts make it advisable to establish a new decision,
under which, in the case of online payments made by direct
debit to a taxable person’s bank account, the corresponding
debit instruction may be issued by someone other than the
taxpayer on the Tax Agency’s website.
The decision in question thus introduces a new incentive
and support measure where online social collaboration is
concerned, in the form of the possibility of a third party
issuing debit instructions in the case of online payments
made by direct debit to a taxpayer’s bank account.
Logically, for security reasons, a requisite that the decision
establishes for this new kind of online payment is that a
collaborator issuing such an instruction must be expressly
authorised to do so by the relevant taxpayer, and the
corresponding authorisation must be included in the Tax
Agency’s registry of powers of attorney.
It is interesting to note that, in relation to liability, Article 7
of the aforementioned Decision of the General Directorate
General of the AEAT of 3
rd
June 2009 stipulates that “in
cases in which, under the terms and conditions envisaged
herein, online payment is made by means of debiting a bank
account and the instruction to do so is issued by a party
other than the taxable person, responsibility for verifying
that the said party has the express authorisation of the
taxable person to perform the transaction, and that such
authorisation is valid at the time in question and included
in the Registry of powers of attorney, shall lie exclusively
with the Tax Agency”.
Lastly, with regard to online social collaboration, it is important
to emphasise the extension of the scope of the practice, as
provided for by Order EHA/1658/2009, of 12
th
June, which
establishes the procedure and conditions for the payment
by direct debit of certain debts administered by the AEAT.
The said order points out that Article 80 of the RGGIT
authorises the Minister of the Economy and Finance to
extend social collaboration with the Tax Agency to aspects
other than those expressly referred to in Article 92.3 of the
LGT. On that basis, the order extends social collaboration
with the Tax Agency to the use of the internet for applications
to defer or spread payment and for offsetting, regardless of
whether or not they are made when submitting tax returns.
As the order itself points out, the measure in question
represents a further attempt to help taxpayers fulfil their
obligations to the tax authorities.
20
20. The first additional provision to Order EHA/1658/2009, of 12th June, extends social collaboration with the Tax Agency to the online
submission of applications for offsetting and to defer or spread the payment of debts corresponding to tax returns and all other debts
administered by the tax authority. It also extends such collaboration to the online submission of the documents that must accompany the
said applications, in accordance with the legislation applicable in each case.
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Order EHA/1658/2009, of 12
th
June, also makes payment
by direct debit compulsory in cases in which the bodies
of the Spanish Tax Agency grant permission to defer or
spread payment. It justifies that measure on the grounds of
the direct debit procedure having so far proven to function
satisfactorily, and invokes the authorisation set out in
Article 46.2.f of the Royal Decree 939/2005, of 29
th
July,
which approves the general regulations on tax collection
(Reglamento general de recaudación or RGR).
21
Additionally, the same order establishes uniform general
rules related to the procedure for the payment of debts to
the Tax Agency by direct debit, which applies to the vast
majority of self-assessments. In this context, the individuals
and bodies authorised to submit returns online on behalf
of third parties may also use the internet to pass on to the
tax authorities direct debit instructions which the taxpayers
whom they represent have previously issued them.
Conclusions
The online submission of tax returns in Spain stands out
among all the tax-related services for which the internet
is used. The advantages of online communication with the
Spanish tax authorities include reductions in compliance
costs, in the tax authority’s administrative workload, in
the time taken to process returns and in the time taken to
process and detect the evolution of economic variables.
Until recently, in Spain, the use of the internet was only
compulsory in a few cases affecting a limited number of
taxpayers and certain taxes, basically linked to large companies.
However, in recent years, provisions have been made for
new cases of compulsory online tax return submission,
considerably increasing the number of taxpayers affected.
The measure is thus taking on a significant scale.
Nonetheless, it can be maintained that the general rule is
that taxpayers are free to choose which medium to use.
The compulsory use of ICTs seems unlikely to be extended
to all taxpayers until such time as these technologies are
much more widespread in Spanish society than at present.
In that regard, it must be borne in mind that some taxpayers,
particularly individuals, do not have the technical and
economic resources to submit returns online. One of a
number of measures geared towards making submission
easier for such taxpayers consists of allowing returns to be
submitted on behalf of third parties in the context of social
collaboration in the collection of taxes.
21. Article 4 of Order EHA/1658/2009, of 12th June, stipulates that “the means of payment in cases in which debt is deferred or spread shall
be direct debit, unless the taxpayer is one of those referred to in Article 35.4 of Law 58/2003, of 17th December, the General Taxation Law.
Such direct debits shall always be collected from accounts on the 5th or the 20th day of the month in which the payment or instalment
agreed upon is due, or the first working day thereafter”. Under the terms set out in Article 79 of the RGGIT, bodies or individuals that
have signed a social collaboration agreement to that end with the Tax Agency may use the internet to pass on to the latter direct debit
instructions with which the taxpayers whom they represent have issued them in relation to deferred or spread debt payments.
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Recommended citation
DELGADO GARCÍA, Ana María (2015). “Compulsory online tax returns”. IDP. Revista de Internet, Derecho
y Política. No. 21, pp. 22-36. UOC [Accessed: dd/mm/yy]
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IDP no. 21 (December 2015) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
Eloi PuigEloi Puig
Jose R. Agustina
www.uoc.edu/idp
Universitat Oberta de Catalunya
36
Compulsory online tax returns
Eloi PuigEloi Puig
Ana María Delgado García
36
About the author
Ana María Delgado García
adelgadoga@uoc.edu
Professor of Tax Law
Director of Legal Studies and Political Science
Director of the Master in Taxation
UOC
UOC
Av. Carl Friedrich Gauss, 5
08860 Castelldefels
