Before delving into the changes in tax matters that regulate the Royal Decree-Law 13/2022, of July 26, which establishes a new contribution system for self-employed or self-employed workers and improves protection for cessation of activity, it is interesting to highlight the recent Judgment of the Supreme Court, Contentious-Administrative Chamber of Madrid, of March 9, 2021 and number 412/2021, which resolves the controversy about the procedure that must be followed to verify the special tax regimes.
The Supreme Court ruling concludes that the Law 58/2003, of December 17, General Tax, makes a legal reservation for the verification of special tax regimes. Specifically, it says that "The verification of compliance with the requirements for obtaining benefits or tax incentives and tax refunds, as well as for the application of special tax regimes, the procedure that must be followed is that of tax inspection."
All of this, up to now, has established jurisprudence by our high Supreme Court and is relevant, since the use of an incorrect procedure integrates the assumption of nullity of full Law by totally and absolutely dispensing with the legally established procedure for it. And the use of one or the other is not indifferent or interchangeable, nor can it be corrected later by going to the hearing file; It supposes, therefore, a guarantee for the taxpayer, which the Public Administration must comply with in any case.
In this regard, it is worth noting the modification included by the legislator in the Third Final Provision of Royal Decree-Law 13/2022, of July 26, in relation to article 117.1 LGT of tax management actions and procedures. Specifically, it says that the actions to date will be the responsibility of management "as well as special tax regimes".
In short, the jurisprudence established by our high Supreme Court has been diminished by the new wording and modification of the article that regulates the Third Final Provision, allowing the verification of the special tax regimes through a management procedure and not a tax inspection, as regulated by Law 28/2003, of December 17, General Tax Law.
For any questions, contact Tomarial and we will advise you personally.
Kristina Rubanenko. Tomarial Fiscal Area
