The taxpayer's right to electronic communication with the tax authorities
| Autor | Rafael Oliver Cuello |
| Cargo | Associate Professor of the Faculty of Business and Communication Studies, University of Vic, Central University of Catalonia |
| Páginas | 3-21 |
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Submission date: August 2015
Accepted date: October 2015
Published in: December 2015
Universitat Oberta de Catalunya
Abstract
Under Spanish legislation, Law 11/2007, of 22
nd
June, on citizens’ electronic access to public services,
establishes their relationship with the government through electronic means as a citizens’ right and as
a correlative duty for the public authorities to be equipped with the necessary electronic equipment and
systems to enable this right to be exercised. The acknowledgement of this right and the corresponding
duties are thus the cornerstone of this law. Law 58/2003, of 17
th
December, which approves the General
Tax Law (the Spanish taxation code) does not acknowledge this right for taxpayers, thereby making
this the main change introduced by Law 11/2007. However, it must also be noted that the General Tax
Law did acknowledge most of the rights and guarantees now provided under Law 11/2007. Furthermore,
some of those already acknowledged in the latter can be traced back to regulations stipulated in the
former. In addition, it is clear that there is a supplementary application of Law 11/2007 for issues not
governed by the General Tax Law.
Keywords
taxation, electronic administration, taxpayers, rights, tax authorities
Topic
taxation
ARTICLE
The taxpayer’s right to electronic
communication with the tax
authorities
Rafael Oliver Cuello
Associate Professor of the Faculty of Business and Communication Studies
University of Vic – Central University of Catalonia
Rafael Oliver Cuello
3
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The taxpayer’s right to electronic communication with the tax authorities
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El derecho del contribuyente a la relación electrónica
con la administración tributaria
Resumen
En la legislación española, la Ley 11/2007 de 22 de Junio, de acceso electrónico de los ciudadanos a los
servicios públicos, prevé la relación de estos con la administración a través de los medios electrónicos
como un derecho de los ciudadanos y como un deber para las Administraciones Públicas de estar provistas
con el equipamiento necesario para que este se pueda ejercer. El reconocimiento de este derecho y
sus deberes correspondientes son, por consiguiente, el fundamento de dicha ley. La Ley 58/2003, de
17 de diciembre, que aprueba la Ley General Tributaria (el código tributario español) no le reconoce
este derecho a los contribuyentes y, por tanto, se convierte en el cambio principal que introduce la
Ley 11/2007. Sin embargo, también hay que destacar que la Ley General Tributaria sí contemplaba gran
parte de los derechos y garantías que en la actualidad reconoce la Ley 11/2007. Además, algunos de los
que se incorporan en esta última se pueden relacionar con regulaciones que se prevén en la primera.
Asimismo, es evidente que existe una aplicación supletoria de la Ley 11/2007 para asuntos que la Ley
General Tributaria no regula.
Palabras clave
fiscalidad, administración electrónica, contribuyentes, derechos, administración tributaria
Tema
fiscalidad
Introduction
Recognition of the taxpayer’s right to communicate with
the Spanish tax authorities by electronic means, as a
consequence of the provisions of 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) is a landmark in the process of integrating
information and communication technologies (ICTs) within
tax collection.
The tax authorities in Spain, especially the Spanish Tax
Agency (Agencia Estatal de Administración Tributaria or
AEAT), stand out for the intensive use they make of ICTs. The
use of these technologies has meant a significant change
in the way the tax authority and the taxpayer communicate
with each other. The addition of electronic channels in their
relationship is facilitating an evolution in the system for
collecting taxes, enabling the tax authority to develop its
facilitator role by performing a considerable amount of work
providing information and assistance without abandoning its
role of ensuring that taxpayers fulfil their duties. It also lifts
some of the burden off the taxpayer’s shoulders in terms of
areas such as submitting self-assessments in certain cases
or, for example, by performing the quantifying operations of
taxation and the calculations for the taxpayers, so that all
they have to do, if they so wish, is simply confirm the amounts,
as in the case of drafting the personal income tax return.
There are three circumstances that facilitate this change
in role of the Spanish tax authorities, in our opinion.
Firstly, the existence of the duty to cooperate with the tax
authority, which constitutes a key part in the mechanism of
tax collection, given that it guarantees a constant flow of
essential information for the system to work satisfactorily.
In the same respect, there is also mutual cooperation among
tax agencies.
Secondly, the use of powerful digitised and internet
communication tools, which not only facilitate tasks by
providing information and assistance to the taxpayer, but
also monitoring tax collection, thereby benefiting from the
huge amounts of information that is in the possession of
the Spanish tax authorities.
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Lastly, the development of the taxpayers’ rights and
guarantees with regard to their communications with the
Spanish tax authorities. One key feature is the right to
receive information and assistance which is adequate for
the purpose of complying with one’s tax duties and the
exercise of one’s rights in doing so.
1. Electronic relationship with
the Spanish tax authorities
within the General Tax Law
Law 58/2003, of 17
th
December, which approves the General
Tax Law, the Spanish taxation code (Ley General Tributaria
or LGT) introduces the main regulations regarding the use of
ICTs in Article 96. Indeed, a new development in comparison
to the previous LGT, is the regulation within the tax law
on the use of ICTs. In Title III of this law, in the part on
tax collection, in which the most far-reaching changes are
introduced, there is the addition of a section (number four)
on ICTs in Chapter I, which deals with general principles. It
has only one precept, Article 96 of the LGT, entitled “use
of information and electronic technologies”.
Systematically, the issue of using ICTs within the general
principles of tax collection is brought up, along with
regulations for other aspects that are closely connected
to the topic of this study.
Article 96 of the LGT stipulates the application in the sphere
of taxation the regulations established in Article 45 of Law
30/1992, of 26
th
November, on the legal system applicable
to public administration and the common administrative
procedure (Ley de régimen jurídico de las administraciones
públicas y de procedimiento administrative común or LRJPAC).
The basis for applying ICTs within the tax authority in its
communications with taxpayers can be found in the principle
of efficacy at the service of public interest, established in
Article 103 of the Spanish Constitution. It should not be
forgotten that technological means undoubtedly make it
possible to expedite proceedings. ICTs also allow for greater
transparency in such operations, as they simplify the way
in which taxpayers access and find out about what stage
the proceedings are at.
In accordance with Subsection 2 of Article 96 of the LGT,
“when compatible with the technical means available to the
tax authority, citizens will be able to communicate with it to
exercise their rights and fulfil their duties through electronic,
computer or telematic means and techniques with all the
guarantees and requirements established for each procedure”.
1
As some writers have rightly pointed out
2
, the use of the
term “citizen” is questionable in its use in tax law, when those
communicating with the tax authority will be taxpayers only.
Indeed, in carrying over the contents of Article 54.2 of the
LRJPAC to the LGT, legislators should have used the term
“taxpayer” in our opinion, as it is technically more correct
than “citizen”, as well as the fact that the new LGT defines
the term and uses it repeatedly.
From the literal wording of Article 96.2 of the LGT, it can
be inferred that the use of ICTs in dealings between the tax
authorities and taxpayers is an opportunity within reach
of the latter. In other words, the use of ICTs is optional, so
it is for the taxpayer to decide whether or not to choose
such means, not the tax authorities. However, this regulation
does not rule out the option of imposing a compulsory
requirement of the use of electronic channels for some
taxpayers in certain specific cases.
3
Moreover, according to the provisions of Subsection 2 of
Article 96 of the LGT, it is necessary to ask whether the said
freedom of choice on the taxpayer’s part exists in any event.
In other words, have the taxpayers got the right to choose
to use electronic means to deal with the tax authorities
whenever they wish to? In addition, consequently, is there a
duty on the tax authority’s side to provide all of the necessary
technical means required to enable such communication?
The answer, in our opinion, must be negative, since it must
not be forgotten that the availability of such computerised
1. Precept related to the tenth final provision of the LGT, which allows the Finance Minister to develop a regulatory system for actions and
procedures by electronic, computer and telematic means in relation to authentication.
2. See M. Fernández Junquera (2004, p. 402).
3. On this point, Julián Valero considers that we cannot conclude the existence of a right of the Tax Department to make it obligatory for
the public to use advanced technical means, although an explicit prohibition is not envisaged either. See J. Valero Torrijos (2004, p. 33).
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and electronic means is a discretional policy within the tax
authority’s activity. Therefore, in order for taxpayers to be
able to choose electronic means in their dealings with the
tax authority, this possibility must be acknowledged in the
corresponding regulations of taxation procedures. If this
acknowledgement in the regulations does not exist, then
the taxpayer cannot choose this electronic system when
dealing with the tax authorities, since it is essential that
it appear in the law, as stated in Article 96.2 of the LGT,
“with all the guarantees and requirements established in
each procedure”.
4
As we shall see below, this represents the main new
development introduced by the LAECSP, which, in Article
6, acknowledges the right of citizens to deal with the tax
authority by electronic means.
In addition, as stated above, Article 96.2 of the LGT does
not prohibit a compulsory imposition of the use of ICTs with
respect to certain taxpayers in specific cases.
Article 98.4 of the LGT provides legal cover for a possible
decision by the Finance and Tax Ministry, within the scope
of his responsibilities, regarding the cases and conditions
in which the taxpayers have to submit their tax returns,
self-assessments, communications, applications and any
other document relevant to taxation.
5
2. Electronic administration
within the General Tax Law
The LGT does not mention the term “electronic
administration”. This is a pity as it is a concept which,
although fairly recent, already has a profile that is roughly
defined. It has even been the object of a specific law, known
as the LAECSP. Therefore, an opportunity has been missed
to make a specific reference to this concept in Spanish
taxation laws.
6
Although the term is not cited in the articles of the LGT, it
cannot be said that the law is unaware of the phenomenon of
electronic administration. On the contrary, it is precisely in the
area of taxation where we find that electronic administration is
most developed of all of the various Spanish public authorities.
Moreover, the current LGT has provided for and regulated
various manifestations of such electronic administration.
Apart from the provisions of Article 96.2 of the LGT
concerning electronic dealings between the tax authority and
the taxpayer, as mentioned above, electronic administration
is regulated in other precepts of tax regulations. Thus,
Article 96.1 of the LGT establishes that “the tax authorities
will promote the use of these electronic, computer and
telematic techniques and means as needed to carry out
their activities and in exercising their responsibilities, within
the limitations of the Constitution and the law”.
The cited duty of the tax authority simply consists of
promoting the use of ICTs.
7
It does not contain a mandate
to add such means directly to its activities and in its dealings
with the taxpayers. It is a duty configured generically. There
are no specifications, firstly, regarding quantitative intensity
with which it must be complied, nor, secondly, the qualitative
intensity. In short, it does not determine in clear terms that
the taxpayer has a subjective right to demand to deal with
the tax authority electronically.
In turn, Article 96.3 of the LGT establishes that “the
procedures and actions whereby electronic, computer or
telematic means and techniques are used will guarantee the
identification of the tax authority involved and in exercising
its responsibilities. Furthermore, when the tax authority
operates in automatic modes there will be a guarantee
to identify the appropriate bodies for programming and
supervising the information system and the appropriate
bodies for solving any appeals that may be submitted”.
This must be seen in connection to Article 100.2 of the
LGT, which declares that “the answer given automatically
4. In this respect, Julián Valero says that, regardless of the cases where it might be obligatory to communicate by means of ICT, in submitting
written documents, applications and communications, the faculty of the taxpayer to opt for the electronic or physical channel would only
be admissible when this duality could be recognised in the legislation. See J. Valero Torrijos (2004, p. 44).
5. On this matter, see A. M. Delgado García (2009a, pp. 43 et seq.) and also R. Oliver Cuello (2014).
6. See a more detailed study of the regulations concerning electronic administration in my work (Oliver, 2009, pp. 19 et seq.). See also R.
Oliver Cuello (2012a, pp. 102 et seq.).
7. An example of promoting the use of ICTs is the drive to encourage electronic invoicing in the public sector. On this matter, see A. M. Delgado
García (2014).
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by the tax authority will be regarded as a ruling in those
procedures in which this form of termination is allowed”.
What is being approached as a possibility is the phenomenon
of computerised decision-making or, in other words,
substituting human intelligence for artificial intelligence
(computer software) for reaching decisions concerning
taxation.
Ultimately, Article 96.3 of the LGT establishes an additional
guarantee to be applied in cases whereby computerised
decision-making is used by the tax authorities. In such cases,
the acting tax authority must not only identify itself and
the exercise of its responsibilities, but also the appropriate
bodies for programming and supervising the information
system as well as the appropriate bodies for solving any
appeals that might be submitted. This provision must be
regarded in a positive light, inasmuch as it establishes
a new right for taxpayers when a decision is reached
by computerised means, as they will be more and more
frequent in the sphere of electronic tax administration.
8
Article 96.4 of the LGT also determines that “the electronic
applications and software that are to be used by the tax
authority for it to exercise its competences must be
previously approved by that tax authority as stipulated
in the regulations”. It is a provision that seeks to provide
transparency, however minimal, to the workings of the
technical tools used by the tax authority in exercising its
functions.
This initiative has a twofold consequence. It allows the
taxpayers to defend themselves in the face of wrongful use
of such techniques; and it also allows them to know the
technical requirements that are needed to be able to deal
with the tax authorities. In this respect, it must be pointed
out that the counterpart Article 45.4 of the LRJPAC has
been repealed by the LAECSP, while it is still in force in the
area of taxation. In our opinion, this is a good thing.
It is also necessary to mention Article 96.5 of the LGT,
which says that “documents issued, regardless of whether
the format is electronic, computerised or telematic, by the
tax authorities, or the ones issued by that authorities as
copies of originals stored by the same means, as well as
electronic images of original documents or their copies,
will have the same validity and effects as their original
documents, provided that their authenticity is guaranteed,
in addition to their completeness and state of conservation,
and, accordingly, reception by the addressee, as well as the
fulfilment of guarantees and requirements of the applicable
laws and regulations”.
In other words, an electronic document can be defined as a
tool by which concepts, ideas or wills are expressed and, to this
end, computerised means and telecommunications are used
as a support. For them to be legally valid they must comply
with the requirements of authenticity, completeness, state
of conservation and reception by the addressee. These are
requirements that are due to the particular characteristics
of digital support systems and (as far as authenticity and
completeness are concerned) are not established, at least
not explicitly, as with hard copies. However, obviously,
they must also be respected in this type of support.
It is useful, at this point, to refer to the new development
introduced by the LGT in relation to the LRJPAC, concerning
the legal validity of “electronic images of original documents
or their copies”. This is of the utmost importance in relation
to the potential use of an electronic file, as it facilitates the
conversion of hard copies to digital and it makes it possible
for a file that has started out in hard copy support to be
digitised and thereby become an electronic file.
Lastly, in this brief account of regulations on electronic
administration within the LGT, it is necessary to make a short
reference to the protection of personal data.
9
According
to Article 95.1 of the LGT, “the data, reports or records
obtained by the tax authority during the performance of
its responsibilities are confidential and will only be used for
the purpose of taxation or resources within its remit and to
establish penalties as required”.
Such information, as relevant for taxation purposes, as
a rule, cannot be forsaken or passed on to third parties.
However, as an exception to this rule, it is allowed to disclose
or communicate such information to third parties provided
that the purpose is to cooperate with certain public bodies
or institutions, to help them perform their duties.
8. On this point, see a comprehensive study entitled “La actuación administrativa automatizada”, in A. M. Delgado García (2009b, pp. 119 et
seq.).
9. On this matter, see R. Oliver Cuello (2012b. pp. 41 et seq.).
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In the exceptional cases which allow the disclosure or
communication of tax-related information to third parties,
according to the provisions of Article 95.2 of the LGT,
“tax-related information must be provided preferentially
by electronic means”. Moreover, “when public authorities
can access information by these means, they cannot demand
that the interested parties provide certificates from the tax
authority concerning this information”.
This LGT precept is pioneering within the Spanish legal system
and is a real step forward towards protecting personal data
and citizens’ rights and guarantees in the field of ICTs, and
it has been taken as a model when adding it to the LAECSP.
Furthermore, when personal data is being handled, it is
essential to respect the confidential nature of this kind of
information and it must be used properly. Article 95.3 of
the LGT establishes, on this point, that “tax authorities will
take the necessary steps to guarantee the confidentiality
of tax-related information and its proper use”.
The control of the taxpayers over their own personal data is
specified in the so-called “informative self-determination”,
a prototype of a last-generation fundamental right (Article
18.4 of the Spanish Constitution), in connection with the right
to privacy, but with certain features that bring it closer to
the right to privacy that exists in the UK and the USA. These
rights have procedural channels for their practice, in what
is known as habeas data, which translates into the right to
access, oppose, amend, and, if applicable, cancel errors and
falsehoods that may be found in the tax authority’s databases.
This is an issue involving the individual’s right to control
(by knowing, correcting, deleting or adding) personal data
organised on physical means that can be processed. The rights
of the individual stipulated in Organic Law 15/1999, of 13
th
December, on the protection of personal data (Ley orgánica de
protección de datos de carácter personal or LOPD) transcend
by far the rights of citizens to access their files and records,
regulated in Article 37 of the LRJPAC and Article 99.5 of the LGT.
3. Law 11/2007, of 22nd June,
on Citizens’ Electronic Access
to Public Services
The LAECSP is designed to promote the use of ICTs in dealings
between citizens and the public authorities. The grounds for
this regulation are to be found in the principle of efficacy of
administrative action (Article 103 of the Spanish Constitution).
Regarding the ground for its power, the LAECSP is basic in
its nature, according to what is established in the 1st final
provision. Its articles are based on the State’s responsibilities
acknowledged in Article 149.1.18 of the Spanish Constitution:
bases of the legal system for public administrations and the
common administrative procedure.
With respect to its scope of application (Article 2 of the
LAECSP), the law is applied in public administration, that
is, the general administration of the Spanish State, the
administration of each regional government (in Spanish,
comunidad autónoma), and the local governments, as well
as entities of public law that are related or dependent.
Moreover, it also applies to citizens in their dealings with the
public authorities and between the various public authorities
in their dealings with each other.
As for the application of the LAECSP in the sphere of taxation,
according to Article 97 of the LGT, the general provisions
for administrative procedure result from the supplementary
application in the regulations for taxation. Thus, in matters
of electronic administration, what is established in the tax
law prevails or, in other words, the provisions contained in
the LGT (within the procedural foundation), as well as what
is stipulated in the tax law, as it enacts the regulations of the
LGT. The LAECSP will be applied through the supplement
and the LRJPAC will be the supplementary law for the latter.
In this respect, it must be noted that the LAECSP is a special
law with regard to its purpose, given that it regulates a
specific matter, electronic administration, within the
common regulations of administrative procedure, for which
the LRJPAC is the general law. As such, the speciality of
the LAECSP by virtue of its topic implies two important
consequences. The first is that, in the event of a conflict
between this law and the general law, the specific law
prevails. Thus, what is established by the LAECSP involves
the non-application of the precepts of the LRJPAC when they
are in regulatory conflict or antinomy. Moreover, the second
consequence is that the LRJPAC is the general law and
supplementary to the LAECSP, as the latter is a special law
for the area of matters concerning electronic administration.
This system of sources, as described, only changes order
when the particular sectoral procedure contains, in turn,
specific provisions in matters of electronic administration. In
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such cases, as far as electronic administration is concerned,
the LAECSP constitutes the general law in relation to the
specific sectoral law, which means that the first provision to
be considered in the preference of sources will be the specific
regulations of the electronic administration contained in the
sectoral law. As a supplementary law, the first law to be applied
will be the LAECSP, followed in second place by the LRJPAC.
10
This is precisely what happens in the area of taxation.
Therefore, in matters of electronic administration, what is
established in the tax law prevails or, in other words, the
provisions contained in the LGT (within the procedural
foundation), as well as what is stipulated in these matters in
the taxation laws that enact the regulations of the LGT, where
LAECSP is the supplementary application and the LRJPAC,
in turn, constitutes the supplementary law for the latter.
11
In
any case, there are likely to be legal contradictions between
the LGT and the LAECSP, given that the latter broadens
the rights and guarantees regulated by the former, without
contravening what is stipulated in the tax law. As for the
development regulations of the LGT, they have already been
subject to a process of adaptation, in the latest provisions
passed, to the precepts of the LAECSP, which is the case,
for example, of Royal Decree 1065/2007, of 27
th
July, which
approves the general regulations on tax inspection and tax
management activities and procedures (Reglamento general
de gestión e inspección tributaria or RGGIT).
It must also be noted that the sole repeal provision of the
LAECSP establishes the repeal of a number of precepts from
the LRJPAC: Article 38.9 (internet registers) Article 45.2
(compatibility with the public authority’s technical means),
Article 45.3 (identification of the public bodies), Article 45.4
(approval of the software and applications), Article 59.3
(internet notices) and the eighteenth additional stipulation
(compulsory use of the internet).
Finally, with respect to when the law takes effect, the third
final stipulation of the LAECSP establishes that, within the
scope of the general administration of the State, the rights
granted in Article 6 of the law can be exercised as of 31
st
December 2009. In turn, it establishes the same for regional
governments (comunidades autónomas) and local authorities,
“provided their budgets allow it”, thus considerably diluting
the effectiveness of the law in regional and local areas.
Law 2/2011, of 4
th
March, adds a fifth paragraph to the third
final stipulation of the LAECSP, which establishes that
the regional governments and local authorities in which
the rights recognised in Article 6 of the LAECSP cannot
be exercised from 31
st
December 2009, regarding all the
procedures of their competence, the programmes and the
schedules required for this must be approved and published.
They should specify the budget estimates and mention the
phases in which the various rights are enforceable by citizens.
In conclusion, given that it does not make sense to establish
a taxation speciality in this matter, in our opinion, it would be
desirable to change Article 96 of the LGT in order to adapt
it to the contents of the LAECSP, especially regarding the
acknowledgement of the taxpayer’s right to deal with the tax
authorities by electronic means. Furthermore, it would even be
useful to defend the suppression of this Article 96 of the LGT and
a block reference to the common administrative law, given that,
as has been pointed out, there is no tax speciality in this area.
4. The taxpayer’s right to
communicate with the Spanish tax
authorities by electronic means
Article 6 of the LAECSP refers to citizens’ rights on
electronic access to public services. The first part of this
precept acknowledges the principal right provided for by
this law, whereas Point 2 of this Article deals with the
acknowledgement of a number of rights associated to it
and of lesser legal transcendence.
10. See E. Gamero Casado (2008, pp. 83-88).
11. On the contrary, Maximino Linares understands that “the LAECSP is intended to be applied throughout the administration and its activities”, and
therefore its fourth additional provision “contemplates only two special rules. The first one to establish that the procedural norms of the new
law (contained solely in Title III) will be applicable to procedures in taxation matters in agreement with what is established in the fifth additional
provision in Law 30/1992, ie, it will result from supplementary application. The second speciality consists of stipulating that in applying the
LAECSP the specifications that will have to be taken into account are the ones in matters of public hiring” (See M. Linares Gil 2009, p. 26). As
already noted, in our opinion, the regulations governing electronic administration within the LGT has its grounds in procedural base, in the first
two chapters of Title III, which deals with taxation. Therefore, the system of sources must be as stipulated in Article 97 of the LGT, and consequently,
the LAECSP in its entirety (and not only Title III) results from the supplementary application in matters of electronic tax administration.
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Article 6.1 of the LAECSP determines that “it acknowledges
the right of every citizen to deal with public authorities
by electronic means for the exercise of their rights
established in Article 35 of the Law 30/1992, as well as
their right to obtain information, ask for information and
make allegations, submit applications, give their consent,
make claims, make payments and transfers and challenge
rulings and administrative acts”.
12
The LAECSP enshrines relationships with public authorities
by electronic means as a right of the people and as a
correlative obligation for these authorities to become
equipped with the electronic means and systems that can
make this right exercisable. The acknowledgement of such
a right and its corresponding obligation thus become a
cornerstone of the LAECSP.
Acknowledgement of this new right constitutes the main
new development of the LAECSP compared to the rules of
the LGT on taxpayers’ rights and guarantees with respect
to electronic administration, given that, as mentioned, this
right is not now recognised by the LGT.
As far as its implications for the LAECSP are concerned,
the term “citizens” is defined in its annex, under Point h),
establishing that the term refers to “any natural persons
or legal entities and entities without legal personality, who
deal with or might deal with the public authorities”.
Therefore, these rights affect both individuals and
corporations as well as any entity without legal personality,
whether or not they have Spanish nationality, and
regardless of whether or not they are residents in Spanish
territory.
13
Fortunately, the legislator is very clear and categorical
when it comes to recognising most of the rights included
in Article 6 of the LAECSP, which do not require a systematic
interpretation to ascertain their scope of application.
As for the legal consequences of a possible failure to comply
by a part of the public authority under obligation, due to
inaction causing an infringement of the law, there are two
ways to respond in the event of such a failure: the pecuniary
liability of the public authority and the complaint for inaction
on the part of the public authority.
With regard to the former of these alternatives, it must be
said that it constitutes one way of responding to the public
authority’s lack of response, according to the regulations
in Articles 139 and onwards of the LRJPAC regarding the
pecuniary liability of the public authorities. Here, we would
be in a case of inaction in the establishment, delivery and
development of public services to which the public authority
is bound, giving rise to a claim for compensation for damages
caused against the exercise of a given right, as dealing with
the authority electronically might be.
14
12. In the explanatory memorandum of the LAECSP, there is a justification of the acknowledgement of this right indicating that the development
of electronic administration is still insufficient today. “The reason in good measure is due to the optional nature of Articles 38, 45, and 59 of
Law 30/1992, of 26th November, on the legal system applicable to public administration and the common administrative procedure. In other
words, it is up to the public authorities themselves to decide whether or not citizens are going to be able to deal with them effectively or
otherwise by means of electronic systems, depending on whether these authorities wish to provide the necessary tools for such dealings
with the public administration”. Moreover, the legislator goes on to state that “the service to the citizens requires consecrating their
right to deal with the various public authorities by electronic means. The counterpart of this right is the authorities’ obligation to provide
themselves with electronic means and systems so that the right can be exercised. That is one of the significant new developments in the
law. There is a shift from declaring a boost for electronic and computer means (which translates in practical terms in the simple possibility
that some public authorities or some of their bodies enable communications by electronic means) and that they be obliged to do so because
the law acknowledges citizens’ right to establish electronic relationships”.
13. Evidently, it must be noted that this broad reference in Article 6.1 of the LAECSP to the holders of the rights acknowledged in this law does
not prevent some other precept in the same law from recognising rights or establishing duties to do with those directly affected legitimately
or those affected by the specific legal stipulation. In such cases, logically, there will be the corresponding legal right established by law. For
example, Article 6.2.d of the LAECSP refers to the interested parties when it establishes the right to know what stage the processing is at.
14. In this case, in general terms, the attribution of responsibility would be an abnormal functioning of the public authority caused by a total
or partial lack of action on the part of said authority, and that would be the cause of the wrongful damages which a citizen is not obliged
to tolerate. Depending on each specific case and on how the liability is approached and the damages caused, it will be very difficult to
determine, given that the circumstances may vary considerably, depending on who the citizen is, whether it involves a specific interaction
or a more general impossibility in the exercise of one’s rights, a more specific sort of damages within a procedure or application, a case of
defencelessness, that the failure to perform has forced the citizen to obtain means, systems or tools, etc. On this matter in greater detail,
see L. Cotino Hueso (2008, pp. 138-140).
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The second alternative response described above involves
a claim due to the public authority’s failure to respond,
which, in essence, is the typical procedure to obtain an
effective compliance of rights acknowledged by law.
This option would involve a prior formal claim through
the authority on the basis of failure to act leading to a
violation of a given right under the LAECSP, according
to the provisions of Article 29.1 of Law 29/1998, of 13
th
July, on administrative jurisdiction (Ley de la jurisdicción
contencioso-administrativa or LJCA).
The reason for this claim of inaction and the ensuing
judicial litigation is that the public authority “is obliged to
perform a specific provision of services in favour of one or
more people, who are entitled to it”, according to the given
precept. When the service is not provided, therefore, there
is an infringement of the law, according to the provisions
of Article 70.2 of the LJCA.
According to the explanatory memorandum of the LJCA,
the complaint filed previously “simply aims to give the
public authority the chance to resolve the conflict and avoid
litigation”. If, in three months, the authority is not capable of
responding to the request or an agreement is not reached
with the interested parties, then the road to litigation is
open, according to the said Article 29.1 of the LJCA.
Consequently, as indicated by the explanatory memorandum
of the LJCA, it is an instrument designed “to combat
administrative passivity and procrastination”, given that
“the claimant may request that the jurisdictional body order
the public authority to fulfil its obligations in the specific
terms in which they are established” (Article 32.1 of the
LJCA). Furthermore, damages can be claimed for inability
to exercise recognised rights.
15
As for the specific configuration of the right recognised
in Article 6.1 of the LAECSP, it must be understood that
“by electronic means”, according to the definitions in the
annex of the LAECSP, refers to the “mechanism, installation,
equipment, or system that makes it possible to introduce,
store or transmit documents, data and information; including
any network of communications open or restricted, such as
internet, landline, mobile telephone or others”.
On the other hand, the exceptions to the right to interact
electronically must be based on law, given that Article 27.1 of
the LAECSP establishes that a law can stipulate that the use
of electronic means is not possible, or such a conclusion may
be inferred, regardless of whether the regional governments
and local entities are not fully obliged to provide for the
exercise of that right, by virtue of the third final provision
of the LAECSP.
It is also noteworthy that the law demands, in general, an
explicit consent for electronic communication in Article 27.2
of the LAECSP, just as it also recognises a possible withdrawal
of the initial consent. This does not preclude the possibility
of establishing compulsory electronic communication with
public authorities through regulations, under the terms
provided by Article 27.6 of the LAECSP.
Another matter in relation to the right recognised in Article
6.1 of the LAECSP is the obligation, or otherwise, to use
standardised models in electronic interaction. In Article
35, the LAECSP obliges the public authority to provide the
corresponding models or electronic systems of applications
on the electronic site for the interested parties, but it does
not stipulate that the citizen must use them. This is to be
criticised, since it might be supposed that the citizen’s option
when deciding to start a procedure by electronic means
already entails the burden of using the necessary tools, for
strictly technical reasons.
Indeed, the demand to use the standardised electronic
models or systems can be justified by the interconnection
of the databases, more efficient processing of the necessary
information for carrying out the procedure, a significant
shortening of the time needed, and the possibility of this
right offers to avoid submitting documents that the authority
already has, among others. Nevertheless, despite the
existence of all of these technical reasons, the legislator has
not expressly regulated the obligation to use standardised
electronic models or systems in electronic interaction.
15. However, the problem is that exact compliance with the law in the case of administrative actions is occasionally problematic. In this respect,
it helps to remember that a guilty sentence cannot impose the contents of a piece of legislation or another law that were necessary to
enforce the right of the LAECSP in question. Although the judge’s ruling could not determine how to guarantee the rights that call for
positive action from the public authority, it can enforce practical recognition, and in the event of noncompliance by the authority, it could
call on the various instruments for executing the sentence, especially those of Article 108 of the LJCA on guilty rulings to be enforced.
See L. Cotino Hueso (op. cit., pp. 141-142).
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Rather, on the contrary, Article 24.2 of the LAECSP states
that “all electronic registers will admit any application,
written document or communication” and Article 24.3 of
the same law states that “there must exist at least one
register system that can admit every kind of application,
written document and communication addressed to the
public authority”. Thus, a rejection for not using the pre-
established models or systems would be contrary to the
general right to access, in Article 6.1 of the LAECSP, an
argument that is also supported by the provisions of Article
24 of the same law. In our opinion, this solution could be
totally unsatisfactory for the public authority, generating
quite a number of malfunctions and impeding the use of
IC Ts.
16
This issue has a better solution in the area of taxation, where
the use of standardised models is particularly important.
Article 98.3 of the LGT has a similar wording to Article
35 of the LAECSP.
17
However, Royal Decree 1065/2007, of
27
th
July, which approves the general regulations on tax
inspection and tax management activities and procedures,
does rightly impose the use of electronic models and forms
in telematic dealings with tax authorities (Articles 88 and
89 of the RGGIT).
18
In the area of taxation, not using the approved model for
electronic submissions of a tax return gives rise to the
corresponding requirement for rectification. Indeed, in
actual fact, the computer system itself issues an error
warning for the taxpayer to proceed to rectify the formal
anomaly detected in the process of electronic transmission
of the tax return.
Following the analysis of Article 6.1 of the LAECSP, it is
noteworthy that this precept is closely related to Article
8 of the same law, which constitutes a specific projection
of the principle of material equality included in Article 6.1,
taking on a service dimension. Article 8.1 of the LAECSP
stipulates that “the public authorities must provide various
channels or means, guaranteeing in any case access to them
by every citizen, regardless of their personal circumstances,
capabilities or knowledge, in the form that they consider
appropriate”.
Although the guarantee is for every citizen, the same law is
particularly aware of the barriers that might appear in actual
access and that right is guaranteed. It is a matter, therefore,
of a lack of knowledge, also known as digital illiteracy, a lack
of means, or financial and personal circumstances, such
as certain physical or psychological impairments that the
citizen might face.
19
Finally, it is necessary to mention that the obligation to have
electronic sites and registers is contained in the LAECSP,
which, no doubt, is closely related to the right included in
Article 6.1 of this law. In line with the general proclamation
16. See L. Cotino Hueso (op. cit., p. 155).
17. Article 98.3 of the LGT establishes that “the tax authority can approve standardised models and systems for self-assessments, tax returns,
communications, applications or any other means indicated in the tax law for cases where there is a massive processing of actions and
tax procedures. The tax authority will provide the mentioned models to the taxpayers in the conditions stated by the tax law”.
18. Article 88.7 of the RGGIT provides that “when the interested party submits the documents that are referred to in the above sections (self-
assessments, tax returns, communications of personal information, applications or any other documents) through computer, electronic or
telematic means, it will be necessary to ensure the information demanded by the tax authority to start the procedure”. In these cases, the
receipt will be issued in accordance with the characteristics of the format, medium or application used. Furthermore, this legislative precept
stipulates that “when annex information is added to the submission through computer, electronic or telematic means and the system does
not allow for direct delivery, the taxpayer will have to submit it in any of the administrative register offices as stated by law within 10 days,
starting from the day of submission, without a prior administrative requirement to that end, unless the specific law establishes a different
place or deadline. This documentation will duly identify the application or communication submitted by electronic, computer or telematic
means or techniques”. Moreover, in relation to corrections, it is established in Article 89.2 of the RGGIT that “all submissions by electronic,
computer or telematic means and procedures will be provisional pending their processing. In the event that they do not conform to the
design and other specifications established by the applicable law, the taxpayers will be required to amend the defects that have appeared,
within ten days, starting from the day after being notified. After this deadline, if the requirement has not been resolved, if the anomalies
still remain preventing the tax authority from ascertaining the information, they will be regarded as having forsaken the request or as not
having fulfilled the corresponding obligation and it will be recorded on file with no further procedure”. Moreover, in the following part of
the same precept of the law, it adds that “when the requirements to amend information referred to in the previous subsection have been
addressed before the deadline but the defects found are not deemed to be adequately resolved, notice will be given that the file has been
shelved”.
19. On these matters, see I. Rovira Ferrer (2008, pp. 39 et seq.).
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of the right to access electronically, there is no longer the
limitation previously imposed by the abolished Article 38.9
of the LRJPAC, whereby the telematic registers were only
designed to deal with applications, written documents and
communications regarding the processes and procedures
specified in the law that created them.
Now, the regulation contained in Articles 24 to 26 of the
LAECSP can be regarded as quite advanced, given that they
go beyond the typical speciality of this type of registers and
enables them to be multifunctional and inter-operational,
and this constitutes a right for every citizen, which is
highly significant when they are dealing with electronic
administration.
The LAECSP establishes the possibility of receiving
documents that are not previously assessed by the law that
created the register, clearly with greater faith in the principle
of multifunctionality. However, the subjective limitation with
regard to the addressee of the document remains, since
the documents must be addressed to some body or entity
within the public authority holding the register.
Furthermore, for the purposes of ensuring interoperability,
through partnership agreements, the public authorities can
activate their respective registers to receive applications,
written documents and communications that fall within the
domain of another public authority, as determined by the
corresponding agreement.
20
5. Other taxpayer’s rights within
the context of electronic
Administration
The second subsection of Article 6 of the LAECSP brings
together a number of citizen’s rights in dealing with
electronic administration, which arise from the principal
right to deal with the public authority by electronic means.
5.1. Right to choose between electronic
channels
Article 6.2.a of the LAECSP acknowledges the right “to
choose the channel through which to deal with public
authorities electronically from the options available at
any given time”. As mentioned, Article 8.1 of the LAECSP
establishes that public authorities “will have to activate
different channels or means for providing electronic
services, guaranteeing access to them by every citizen in
any case, regardless of their personal circumstances, means
or knowledge, in the way that they deem appropriate”.
21
It does not refer to the right to choose between physical or
electronic means, but the right to choose from the channels
that enable electronic communication, such as internet,
text messaging, landline or cell phones, digital terrestrial
television, and so on, or the option of physically visiting a
citizen services desk in the offices of the corresponding
public authority, to receive the electronic service.
22
The choice of the electronic channels that are available for
each specific relationship with the public authority should not
cause any sort of difficulty either for the authority or the citizen,
given that they all assume that the information is digitised,
as the fundamental characteristic of the electronic option.
5.2. Right not to provide information
that the public authority already has
in its possession
Article 6.2.b of the LAECSP establishes the “right not to
provide information and documents that the public authority
already has in its possession. The public authorities will
use electronic means to recover this information on the
condition that, in the case of personal data, they have the
explicit consent of the interested party in line with the terms
established by Organic Law 15/1999, of 13
th
December, on
the protection of personal data, or a regulation with the
standing of law that stipulates to this effect”.
20. On this matter, see R. Oliver Cuello (2011a, pp. 79 et seq.).
21. According to the definition established in the annex of the LAECSP, “channels” is a term that means “the structures or means of announcing
the contents and services, including the face-to-face channel, the telephone and electronic means, as well as others that exist now or may
exist in the future (mobile devices, digital terrestrial television, etc.)”. In any case, it is important to remember the function performed by
the right to withdraw one’s consent to deal electronically with the public authority, acknowledged explicitly in Article 27.1 of the LAECSP in
general, and in 28.4 of the LAECSP in the case of notifications. In relation to electronic notifications on taxation, see A. M. Delgado García
(2011a, pp. 66 et seq.).
22. On this matter, see R. Oliver Cuello (2011b, pp. 44 et seq.).
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In turn, for the effective exercise of this right, Article 9.1 of
the LAECSP establishes that “every public authority must
facilitate access by the other public authority to information
on the interested parties that are in their possession and
stored electronically”, specifying the conditions, protocols
and functional or technical criteria with the highest guarantee
of security, integrity and availability, in compliance with what
is stipulated in the LOPD.
23
In the area of taxation, the right not to provide documents
that the tax authority already has is regulated by Article
99.2 of the LGT, although it does not mention electronic
means anywhere. This Article 99.2 of the LGT establishes
that “taxpayers may refuse to submit documents that are
not required by tax law or those that have previously been
handed over by the taxpayers and are in possession of the
tax authority”. Furthermore, according to the final remark
in this article of the LGT, when it is a matter of information
provided by a third party, the tax authority can allow the
taxpayer to refrain from submitting it again if the authority
has it. In these cases, accreditation of the information known
to the tax authority will suffice for this purpose, through
people other than the taxpayer themselves.
24
In addition, Article 95.2 of the LGT establishes an important
obligation to act for public administrations, and not only
a citizen’s right to be exercised or not at their discretion.
This precept states that “when public authorities may
have the information by said (electronic) means, they must
not demand the submission of tax certificates from the
taxpayers regarding such information”.
This Article 95.2 of the LGT is pioneering in the legislation
and constitutes a considerable step forward in the protection
of personal data and in the rights and guarantees of
citizens in the area of ICTs. As discussed below, it is a more
progressive regulation with greater emphasis on guarantees
for citizens than the regulation by LAECSP on this matter.
25
Indeed, Article 6.2.b of the LAECSP could be criticised in the
way that it is configured as a right of the citizen rather than
an obligation of the public authority, regardless, therefore,
of a citizen’s desire to exercise their rights. In other words,
the citizen may choose not to exercise the established
right according to this precept and decide whether or not
to provide the information and documents requested when
dealing with the public authority.
26
As we have seen, this is not the case in taxation, given
that Article 95.2 of the LGT clearly establishes the public
authority’s duty, so it does not require a citizen necessarily
to exercise their right.
The right not to provide information and documents that
the public authority already has in its possession, regulated
in Article 6.2.b of the LAECSP is closely related to several
precepts of this law, such as Article 9 of the LAECSP,
which governs “information transmissions among public
authorities”; or Article 27.7 of the LAECSP, on the priority
use of electronic means in their communications with other
public authorities; or Article 34 of the LAECSP, which,
among the criteria for electronic management, establishes
the “suppression or reduction of required information from
citizens, by means of their substitution for information,
information transmissions or certificates”.
This right is also related to the provisions of Article 35 of the
LAECSP as, in Subsection 2, it regulates the submission of
23. According to Article 9 Subsection 2 of the LAECSP, the availability of such information will be restricted to those required data to the
citizens by other public authorities for the processing and resolution of the procedures and actions of their competence, in accordance
with their rules. Access to personal data will be also conditional on compliance with the terms established in Article 6.2.b of the LAECSP.
24. Nevertheless, the inclusion of the expression “in any case”, referring to the requirement, is not in line, once again, with Article 35.f of
the LRJPAC and the regulations stipulated in its enactment, since the latter, before allowing the authority to issue another requirement,
demands that there be a justification for the total impossibility of obtaining the document, even when it is not a matter of providing a new
document, but rather the accreditation of the specific information about oneself or a third party, already provided and contained within
such documents. Meanwhile, it is noteworthy that, if the improper requirement of such documents is left unattended, this may even lead
to the annulment of the administrative action ordered, regardless of the existence of the documents which were unduly requested and
rightfully not provided by the taxpayer, on the condition that its grounds are the assumed failure to provide requested documents. On this
matter, see E. De La Nuez Sánchez-Cascado and M. Ogea Martínez-Orozco (1998, pp. 135 – 136).
25. On this matter, see R. Oliver Cuello (2011c, pp. 89 et seq.).
26. Julián Valero is of the same opinion, stating that “from the point of view of efficacy, it would have been preferable to have followed the
model of the tax legislation, specifically Article 95.2 of the LGT rather than acknowledging a right of the citizens to choose a channel for
transmitting the information precisely in dealing with an area of the authority’s responsibility”. See J. Valero Torrijos (2008, p. 273).
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digitised copies of documents by citizens and the option for
the public authority to certify their authenticity without the
originals having to be shown physically for verification; as well
as what is established by Subsection 3 of the same precept,
which stipulates that “the standardised application systems
can include automatic verifications of the information
provided with regard to information stored in their own
systems or belonging to other authorities, and even offer the
entirely or partially completed form, so that citizens can verify
the information and change it or complete it as required”.
This final provision is clearly related to the extensive experience
of the tax authorities in matters of drafting of the personal
income tax return, as well as its confirmation through various
electronic channels. In this respect, Article 98.1 of Law 35/2006,
of 28th November, regulating personal income tax (Ley del
impuesto sobre la renta de las personas físicas or LIRPF), states
that “taxpayers can request that the tax authority send them,
for purely informative purposes, a draft of the tax return”.
Furthermore, Article 98.4 of the LIRPF states that “when
taxpayers consider that the draft of the tax return reflects their
personal taxation situation for income tax, they can approve it
and confirm it, in accordance with the conditions established
by the Finance Minister. In this case, it will be considered
to be the tax return for this tax for the purposes stated in
Subsection 1 of Article 97 of this law” (which regulates the
submission of the self-assessment of the personal income tax).
The provisions of this Article 98 of the LIRPF are enacted
every year by Ministerial Order. It establishes the cases
and conditions in which it is possible to submit the self-
assessment and the confirmation or amendment of the draft
of the tax return by electronic means or telephone.
5.3. Right to equality of electronic access
In Point c) of Article 6.2 of the LAECSP, there is recognition of
the “right to equality in the electronic access to public authority
services”. The aim of the right acknowledged in Article 6.2.c of
the LAECSP does not constitute a prohibition of discrimination
that might arise by imposing electronic communication in
administrative affairs, an issue referred to in Article 27.6 of
the LAECSP. Nor does it aim to avoid possible discrimination
that might be suffered by those who choose not to use
electronic means, as mentioned in Article 4.b of the LAECSP.
The object, therefore, of Article 6.2.c of the LAECSP is
possible discrimination affecting effective electronic access
for every service provided by public authorities.
Furthermore, it must not be forgotten that any discrimination
concerning electronic access may violate the right to
equality stipulated in this precept. There are situations
of positive discrimination which precisely aim to promote
electronic access for certain groups by regulating certain
measures that certainly establish a different treatment
for the individuals of such groups. In these cases, the
discriminating treatment is perfectly admissible from a
constitutional point of view and, of course, it does not violate
the right to equality as recognised by this precept.
There may be possible different treatments that citizens
might receive in terms of exercising a right that the law
recognises for them, such as in the case of the right to choose
among different available electronic channels (Article 6.2.a
of the LAECSP), or the right to use the various systems of
electronic signatures (Article 6.2.h of the LAECSP), or the
right to choose the software applications or systems to deal
with the public authorities (Article 6.2.k of the LAECSP).
In all of these cases, it may be that citizens are treated
differently by the public authority depending on the channel,
device for electronic signature or software application or
system of their choice. Thus, it may be the case that the
administrative procedure, in its electronic interaction, is
faster or slower because of the legitimate choices made
by each citizen.
Therefore, to conclude any possible violation of this right,
it will be necessary to assess the adequacy and balance of
the initiative, taking into account all of the interests at stake.
5.4. Right to know the progress
of the procedures electronically
Point d) of Article 6.2 of the LAECSP recognises the right
“of the party involved to know by electronic means the
stage at which the procedure is being processed, except
in cases where the relevant law establishes restrictions on
their access to such information”.
Furthermore, Article 37.1 of the LAECSP establishes that, “in
administrative procedures managed entirely by electronic
means, the public body that processes the procedure will
provide the interested parties with a restricted electronic
service through which, after identification, they may consult
at least the information regarding the stage at which the
procedure is being processed, except when the applicable
legislation establishes restrictions on such information. The
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information on the stage of the process will include the list
of the acts carried out within the process, indicating their
contents, and the date they were completed”.
Article 37.2 of the LAECSP provides that “for the rest of
procedures, electronic information services will also be
activated regarding the processing stage for the procedure
and the public body or unit that is responsible for it”.
When the procedure is not processed by electronic means,
this right is put into practice by requiring substantial human
and technological resources from the general administration
of the State, or, in other words, the public authority directly
obliged in this case, by virtue of the third final provision of
the LAECSP.
5.5. Right to obtain electronic copies
Point e) of Article 6.2 of the LAECSP recognises the citizens’
right to “get electronic copies of the electronic documents
that are part of the procedures where they are involved”.
Article 99.4 of the LGT refers to this matter, although it is
not adapted to electronic means. It establishes that “the
taxpayers who are party to the taxation action or procedure
may obtain a copy of the documents that appear in the file
at their own cost, unless they affect the interests of a third
party or the privacy of other people, or current legislation
stipulates to this effect. The copies will be provided in
the hearing procedure or, otherwise, in the procedure of
allegations after the proposed decision”.
This precept refers solely to the taxpayers who are “party”
to a tax action or procedure. This concept is much more
restricted than “interested”.
27
The reference to “the interests of third parties” in Article
99.4 of the LGT, on the other hand, cannot enable a
comprehensive interpretation of this concept, given that it
could remove the right of someone who requests the copies
of the documents, which are part of the file.
The right to get a copy of the documents, according to
Article 99.4 of the LGT, may also be refused when it is thus
stipulated in the current legislation. The most frequent case
is constituted by Article 23.2 of the LOPD, when “impeding
the administrative actions leading to ensure the compliance
with tax obligations and, in any case, when those affected
are being inspected.”
Article 95.4 of the RGGIT refers to getting electronic copies
of documents that are part of a procedure. Specifically,
this precept establishes that “in those cases where the
documents are in the corresponding records or file stored
by electronic, computerised or telematic means, then the
copies will be released preferably by these means or in the
format that is appropriate for such means, on the condition
that the technical means available make it possible”.
Nevertheless, the terms of Article 95.4 of the RGGIT do not
establish a right for the taxpayer to obtain such copies, since
it restricts the release of electronic copies to “the technical
means available to make it possible”, which is to be criticised
and contrasts with the legal provision contained in Article
6.2.e of the LAECSP.
Moreover, Article 6.2.e of the LAECSP does not refer
anywhere to whether the procedure is ongoing or finished,
unlike Article 99.4 of the LGT, which only considers the
exercise of this right in the hearing process or, otherwise, in
the allegations process subsequent to a decision proposal.
5.6. Right to store in electronic format
Point f) of Article 6.2 of the LAECSP recognises the right
“of the public authorities to store electronic documents that
are part of a file or record”.
Certainly, it is inherent to the existence of an electronic
administration to store the documents that are part of
their files in electronic format, as it would be neither
understandable nor effective to have an electronic
administration that did not store electronically formatted
documents properly.
The guarantee of electronic storage by public authorities
of documents that belong to a file or record constitutes,
in our opinion, evidence of the work that a legislator
must do to combat the presumed vulnerability of digital
27. Article 99.4 of the LGT, therefore, in Ricardo Huesca’s opinion, establishes a restriction, which seems to be based on the confidential
nature, according to the LGT, of information obtained by the tax authorities, although the very exceptions contained within the precept
are a sufficient safeguard of the rights of third parties. See R. Huesca Boadilla (2004, p. 676).
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support systems. Electronic documents are exposed to a
number of dangers which, obviously, do not threaten hard
copy documents. In the face of such threats, it is positive
for the legislator to underline the need for conservation
in electronic format by the public authority for all those
documents that are part of an administrative file or record.
The need to store and keep these documents must be
related to the existence of procedures of mass management,
especially in the area of taxation, which can multiply the
effects of such threats. In the same way, it is related to the
necessary measures of interoperability of computerised
systems, as well as taking technical precautions to ensure
convenient retrieval of information in electronic format,
thereby establishing the necessary precautions in relation
to backup copies and systems.
28
Now, once again, in this case, the same criticism stated
above could also be made, that is, that a subjective right
is configured by this law in relation to a matter for which
it would have been much more appropriate to establish an
obligation for the public authority to comply with.
The drawback of the option chosen by the legislator lies in
the fact that such a subjective right can be exercised or not
by the citizen, whereas a duty on the public authority’s side,
considering the obvious level of underlying general interest,
produces a stronger guarantee for the people, since it does
not make a procedure for the exercise or not of a subjective
right depending on the particular interest of the citizen.
5.7. Right to use electronic means
of identification
Article 6.2.g of the LAECSP refers to the right “to obtain the
necessary means of electronic identification. In all cases,
individuals are allowed to use the systems of electronic
signature contained in the National Identity Card for any
electronic communication with any public authority”.
Moreover, Article 6.2.h of the LAECSP covers the right “to
use other electronic signature systems allowed in the area
of public authorities”.
In terms of forms of identification and authentication,
Article 13.1 of the LAECSP stipulates that, in their dealings
by electronic means, public authorities must accept
electronic signature systems that are in accordance with the
provisions of Law 59/2003, of 19
th
December, on electronic
signature, and are adequate to guarantee the identity of the
participants and, if need be, the authenticity and integrity
of the electronic documents.
Thus, the LAECPS has configured a flexible system for the
use of electronic signature systems, trusting and promoting
the electronic National Identity Card, prioritising advanced
electronic signature and foreseeing the likelihood of using
other systems as well as digital signature for cases where
the required levels of security and the nature of the
administrative procedure allow for them.
In general, therefore, it might be said that LAECSP
contains adequate legislation for the means of electronic
identification.
29
5.8. Right to guaranteed security
and confidentiality of the data
Article 6.2.i of the LAECSP recognises the right “to
guaranteed security and confidentiality of the data that
appear in the files, systems and software applications of
the public authorities”.
The legislat
or makes an effort to establish special guarantees
for the security and confidentiality of the information, which are
presumably more seriously threatened in electronic environments
than in traditional paper documents. This particular concern
of the legislator to establish juridical guarantees to combat
mistrust from citizens regarding the fragility or vulnerability
of electronic systems is also reflected in some of the goals
for the law, which is dealt with in Article 3 of the LAECSP.30
28. On this matter, see A. M. Delgado García (2012, pp. 19 et seq.).
29. On this matter, see I. Martín Delgado (2008, pp. 317 – 368).
30. Article 3 Subsection 3 of the LAECSP refers to the creation of “the conditions of trust in the use of electronic communications, establishing
the necessary precautions for the preservation of the integrity of fundamental rights and, in particular, those related to privacy and protection
of personal data, by means of the guarantee of security of the electronic systems, data, communications and services”. Likewise, security
constitutes one of the general principles established in Article 4 of the LAECSP. Specifically, Point f) of this precept refers to the principle
of security in the deployment, implementation and use of electronic means by the public authority, by virtue of which there will be a
standard of at least the same strict guarantees and security as required for the use of non-electronic means within administrative business.
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Furthermore, the need for security is also defended with
regard to information coming from the electronic sites and
their communication systems (Article 10.3 of the LAECSP);
from electronic registers (Article 25.4 of the LAECSP); from
means or support systems that store documents (Article 31.3
of the LAECSP); or the set of criteria and recommendations
in matters of interoperability (Article 42.1 of the LAECSP).
Likewise, Article 42.2 of the LAECSP deals with the National
Security Scheme, which “aims to establish the security
policy in the use of electronic means” within the LAECSP.
5.9. Right to quality of electronic public services
Article 6.2.j of the LAECSP establishes the right to “quality
in public services provided by electronic means”. The
requirement for quality of the public services within general
administration areas is reflected in some of the rights set
out in Article 35 of the LRJPAC, as well as in some of the
principles recognised by Law 6/1997, of 14
th
April, for the
organisation and functioning of the general administration
of the State.
In the enactment of these provisions, various laws have been
published on how to legislate the quality of these services,
their assessment, the systems for dealing with citizens,
citizens’ charters, the establishment of mechanisms for
complaints and claims, etc.
In the LAECSP, this concern for the quality of services is
noticeable in various precepts of the legislation. In this respect,
a clear reflection of this is the principle of administrative
simplification, recognised in Article 4.j of the LAECSP, or
the principle of responsibility and quality with regard to
information and services offered, established by Article 4.h
of the LAECSP, or the principle of quality in the creation
of electronic sites, regulated in Article 10.3 of the LAECSP.
Again, we could criticise the wording of this Article 6.2.j of
the LAECSP, as it has configured a requirement for quality
in public services in the area of electronic means as a
subjective right granted to the citizen. This configuration
as a subjective right can bring about certain difficulties in
specifying its contents, as well as its scope of application,
and, in this sense, it would have been preferable to find it in
Article 4 of the LAECSP, which deals with general principles.
The potential of this right would fit, in general, within the
procedures for claims on the pecuniary liability of the public
authority, since it would force an obligation to provide
certain electronic services taken on by each authority and
it would make it easier to recognise liability for damages
caused by its absence.
31
5.10. Right to choose the software applications
or systems in the electronic relationship
Article 6.2.k of the LAECSP recognises the right to “choose
the software applications or systems to deal with public
authorities, provided they use open standards or, if
applicable, others that are of widespread use by the people”.
This right is very closely related to what is set out in Article
4.i of the LAECSP, which refers to the general principle of
technological neutrality and adaptability to the progress of
the techniques and systems of electronic communication.
For the correct interpretation of the right recognised in Article
6.2.k of the LAECSP in light of the general principle established
in Article 4.i of the same legislation, it is advisable to go to
the definitions contained in the annex to this law, especially
the terms “open source application” and “open standard”.
Article 41 of the LAECSP is also closely related to this matter,
with regard to interoperability of the information systems.
In this case, it is useful to go to the annex of the law for the
definition of “interoperability”.
Lastly, the provisions of Article 45 of the LAECSP relate to
the right mentioned above. It also alludes to the software
applications that are open source in relation to the reutilization
of systems and applications property of the public authorities.
In short, it can be claimed that the legislation contained in
the LAECSP regarding citizens’ freedom to choose software
applications or systems to deal with the public authorities
can be considered to be adequate and positive, given that it
facilitates access to electronic administration by the largest
31. Lorenzo Cotino is of the opinion that this right may acquire a singular predicament together with the citizens’ legitimate trust in public
information, strengthening the likelihood of success for claims of pecuniary liability of the public authority for damages caused by errors,
inaccuracies or failure to update public information offered to citizens by the authority. See L. Cotino Hueso (op. cit., pp. 214 - 215).
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possible number of citizens, without restricting their choice
of such applications or systems and respecting the principle
of technological neutrality.
32
5.11. Right to electronic information
on service activities
Lastly, Article 6.3 of the LAECSP stipulates that “in
procedures related to establishing service activities, citizens
have the right to get information through electronic means
and complete all procedures and formalities through points
of single contact”. This right entails the transposition to our
legislation of Articles 6, 7 and 8 of Directive 2006/123/CE, of
the European Parliament and the Council, of 12
th
December,
on services in the internal market.
33
Therefore, in Article 6.3 of the LAECSP, there is recognition
of citizens’ right to get information electronically in relation
to establishing service activities. In accordance with the
provisions of Article 4 of Directive 2006/123/CE, it is about
administrative procedures which are necessary for any
self-employed economic activity, normally provided for
remuneration, for an indefinite period and through a stable
infrastructure.
With regard to Article 6.3 of the LAECSP, we could make
the following criticism. Except for the specific reference to
information on litigation, the rest of the aspects covered
by this right were unnecessary, given that they are already
understood to be protected under the provisions of Article
6.1 of the LAECSP.
Conclusions
The greater potential for taxpayer assistance and information
using computerised and electronic means should, in
our opinion, address the increasingly important task of
determining the tax debt by the tax authorities. Evidently,
it is not about going back in history towards a system of
applying taxation in effect prior to the 1978 fiscal reform.
It is more a question of taking full advantage of the huge
potential of computer-related tools to discharge the taxpayer
of formal duties. Basically, this is the case of submitting
tax returns or calculating the amount of tax payable. Thus,
the aim would be to achieve a reduction of indirect tax
pressure and a more efficient application of taxation overall.
In this context, it is essential to develop and strengthen the
rights and guarantees of the taxpayers, especially when they
are dealing with the tax authority by electronic means. In
such cases, the risks associated to using the ICTs must be
addressed clearly and firmly by the legislator, in order to
neutralise the risks and even promote their use by as many
citizens as possible.
The advantages of using such technologies are evident, both
for the taxpayer, and, basically, for the tax authority. However,
the impact of the so-called digital divide is also now clear,
separating citizens who have access to new technologies
from those who do not. Sometimes, this problem is rooted
in financial, social and educational causes, which can only be
resolved as the information and knowledge society gradually
spreads to every social group. It is, in short, a problem that
affects both the private and the public sector, but, in our
opinion, it is the latter that should lead the way in developing
digital literacy.
As stated above, sometimes, the problem has a marked
financial, social and educational side to it. However, frequently,
the rare or non-existent use of ICTs is simply due to mistrust.
This mistrust can be traced back to the assumed vulnerability
of the electronic environment, which is perceived as easily
manipulated; the likelihood of seeing citizens’ privacy
violated; or even actual difficulty in using such technologies,
which are sometimes too demanding in terms of technological
knowhow. In our opinion, this is where legislators have to
make an effort to fight to dispel the risks that come with
technological innovation, as mentioned above, since there
are solutions, both technical and legal, which guarantee
the reliability and trustworthiness of electronic support
systems, which, in many cases are actually superior to paper.
32. On this point, see A. M. Delgado García and R. Oliver Cuello (2006, pp. 11 et seq.).
33. Article 6 of this Directive covers the points of single contact, establishing that Member States shall ensure that it is possible for providers to
complete the following procedures and formalities through such points of single contact. Then, Article 7, whose focus is right to information,
stipulates that Member States shall ensure that the information is easily accessible to providers and recipients through the points of single
contact regarding service activities. Finally, Article 8 deals with procedures through electronic means and establishes that Member States
shall ensure that all procedures and formalities relating to access to a service activity and to the exercise thereof may be easily completed,
at distance and by electronic means, through the relevant point of single contact and with the relevant competent authorities.
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In any case, the promotion of ICTs and the encouragement
of their use, in our opinion, require public service policies,
as well as information and dissemination of the advantages
that ICTs offer and the abovementioned technical and legal
solutions that ensure the reliability and trustworthiness of
electronic means.
However, as a previous step, it is essential to provide
legislation that can fight mistrust in the use of these
technologies. In this respect, it can be said that the LAECSP
achieves this goal adequately, especially in terms of its
recognition of citizens’ right to communicate with the
Spanish authorities by electronic means.
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Recommended citation
OLIVER CUELLO, Rafael (2015). “The taxpayer’s right to electronic communication with the tax authorities”.
IDP. Revista de Internet, Derecho y Política. No. 21, pp. 3-21. UOC [Accessed: dd/mm/yy]
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About the author
Rafael Oliver Cuello
rafael.oliver@uvic.cat
Associate Professor of the Faculty of Business and Communication Studies
University of Vic
Central University of Catalonia
Sagrada Família, 7
08500 Vic
