In June 2021, a resolution of the Superior Court of Justice of the Valencian Community (TSJCV) annulled a sanction imposed on a top-level sports entity in the Valencian Community defended by Tomarial. The initial proposal for the sanction amounted to 810.000 euros and came from the Directorate General for the Regulation of Gambling. The contentious-tax area of our office, led by Raphael Donet, based its resources on the non-existent justification of guilt in the sanctioning resolution. The sanction referred to the advertising of the sports entity on the international website of a bookmaker that did not have the enabling title to offer gambling in Spain.
This case, defended by tomarial, has gone through numerous judicial instances before being resolved in favor of our client. The first sanctioning proposal was in 2016 and after the first allegations the amount of the sanction was lowered to € 254.000. After this, an appeal was filed against this resolution, which was dismissed in 2018. The contentious-tax area of Tomarial appealed before the Contentious-Administrative Chamber of the National Court, although, when the lawsuit was concluded to be resolved, the Chamber declared itself incompetent when the process was already pending to issue a ruling. The National Court indicated that the jurisdictional competence corresponded to the Contentious-Administrative Chamber of the Superior Court of Justice and the matter passed to the Supreme Court of the Valencian Community.
The allegations prepared by Tomarial were based on the fact that there was no motive of guilt of the sports entity defended by our office in the entire sanctioning file. Despite this, the Contentious-Administrative Chamber of the Supreme Court of the Valencian Community issued a dismissal judgment in February 2020, before which an appeal was filed with the Supreme Court. The High Court, although inadmissible the cassation appeal for lack of appeal for the formation of jurisprudence, opened the possibility to raise an incident of nullity of proceedings before the STJCV, as a previous step, in any case, to file an appeal of protection before the Constitutional Court.
Finally, in January 2021 our office raised the incident of nullity of proceedings before the Valencia Chamber, which by means of an order issued last April was estimated and annulled the sentence handed down by said Chamber in February 2020. Thus, in June In 2021, the Contentious-Administrative Chamber of the Supreme Court of the Valencian Community drafted a new and definitive judgment of the TSJCV that annulled the fine proposed by the General Directorate for the Regulation of Gambling. A final judgment that annulled a previous one from the same court and that has put an end to this case.
The sentence upheld the argument of the defense of Tomarial, recognizing that in the previous ruling it had not ruled on the justification of guilt. And also that the brief answering the claim formulated by the State Attorney had not refuted that specific claim of nullity. In the opinion of Rafael Donet, director of the contentious-tax area of Tomarial, “it is a legal success to get a Superior Court of Justice to annul its own sentence. We think that the motivation of guilt is a key element in many cases of tax penalties, because there is a lot of jurisprudence that supports their application ”.
The contentious-administrative department of Tomarial is a growing area within the firm, dedicated to the legal defense of companies and individuals against tax settlements and sanctions. "The collection pressure in Spain has increased a lot and our role is to defend taxpayers, advising them on the possibilities they have to sue and get the sanctions imposed by the tax administration annulled," explains Rafael Donet. Based on his experience, “there are many cases in which an appeal can be won, not only for substantive reasons but, and fundamentally, due to procedural defects in the vast majority. Liability derivation agreements are another route used more frequently today by the Tax Administration in order to increase collection, violating the rights and interests of taxpayers, being our legal and moral obligation to defend clients, explaining to them that if they resort they have very high chances of success before the tax administration in the courts ”.
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