Many taxpayers did not comply with the new obligation to inform the Treasury about their assets and rights outside our country (real estate, accounts and securities) by not submitting, before April 30, 2013, the model declaration 720 corresponding to the 2012 fiscal year. Being a purely informative model, many people did not present it in their day due to ignorance and have not done so later. Therefore, we need to ask ourselves if the sanctions prescribe at some time for not presenting the 720 model.
In the first place, let us remember that all those natural and legal persons residing in Spanish territory, the permanent establishments in said territory of non-resident persons or entities and the entities referred to in article 35.4 of Law 58/2003, are obliged to Present form 720, when the holder of each group of assets and rights abroad exceeds 50.000 euros as a whole. In subsequent years, taxpayers will only have to present form 720, to report on the groups in which there has been an increase of more than 20.000 euros compared to the last return filed.
Having explained the above, we see that the non-presentation of the 720 model is associated with the imposition of sanctions and consequences that we will detail below:
- First, the penalty for the presentation of model 720 incompletely inaccurate or with false data, It can reach an amount of 5.000 euros per data (with a minimum of 10.000 euros) or 100 euros per data (with a minimum of 1.500 euros) depending on whether or not there has been a previous requirement of the Administration.
With the imposition of this sanction we must keep in mind the article 189.2 of the LGT, which establishes a limitation period of four years, counted since the infraction was committed. That is to say, that the sanctions for the presentation of the declaration of incomplete, inaccurate or with false data for the non-presentation of the model 720 of the 2012 exercise, will prescribe on May 1.
- On the other hand, the Treasury may discover that the taxpayer has breached the obligation to present the 720 model with tax implications in the Income Tax for Individuals (hereinafter, IRPF). In this case, the damage to the taxpayer, consists of the imputation of an increase in equity in the taxable base of the oldest year of the non-prescribed, for the value of the assets and rights in respect of which the obligation to present the 720 model had been breached.
Consequently, the Treasury will proceed to issue the corresponding liquidation in the personal income tax for the imputed increase in equity not justified in the 720 model, despite the fact that more than four years have elapsed since the deadline for submitting the declaration, since the imputation will always be done in the oldest fiscal year.
Once the taxpayer's situation is regularized through the corresponding settlement, the Treasury, in parallel, imposes a 150% penalty on the increase of unjustified assets charged, commented in the previous paragraph, considering as very serious infringement the possession of unjustified gains.
This penalty will be understood as committed at the moment in which the increase in equity is attributed to the taxpayer's IRPF and as the imputation will always be made in the oldest year, but of those not prescribed, the imposition of the penalty will be within the deadline of four years of prescription, not being able to apply article 189.2 of the LGT.
Certain imprescriptibility may have dire consequences for the taxpayer, even violating the principle of legal certainty. Likewise, we must be attentive to the decisions of the Courts.
However, the 150% penalty may be avoided as long as the taxpayer regularizes his tax situation by means of the corresponding complementary declaration in personal income tax, before the Treasury proceeds to open an investigation. We cannot forget that if the taxpayer proceeds to regularize his income statement, without prior requirement, due to the holding of unjustified earnings - for example, 2012 financial year - currently a 20% surcharge and default interest would be applied, that in the case of personal income tax, they will be drawn from July 2, 2014, one year after the day following the date on which the deadline for submitting the corresponding self-assessment ended.
This rule has already been analyzed by the European Commission, sending a reasoned opinion to Spain, requesting that it modify its norms on the model 720 within two months, considering this type of sanctions for non-compliance disproportionate. But the Ministry of Finance has already announced that it will not modify the rule and that it will be prepared to defend its rule before the Luxembourg Court if necessary.
Maite Parra Rodriguez
