Brussels refers Spain to the Court of Justice of the European Union for its disproportionate tax penalties

The European Commission has referred Spain to the Court of Justice of the European Union for considering its sanctions for failing to submit the obligatory tax information or its late filing as disproportionate and discriminatory.

1.      Articles “42 bis” and “42 ter” of the Spanish Royal Decree 1065/2007 of 27 July establish that all Spanish tax resident individuals are obliged to report to the Tax Authorities certain assets and rights located outside of Spain (for instance, bank accounts with over 50,000€, shares and some other financial assets) by filling the 720 Form from 1 January to 31 March.

2.      The European Commission considers that penalties for late filing or for failing to submit this information are disproportionate and discriminatory as they are higher than those for similar infringements in a purely domestic situation. As a result, the Commission considers that these sanctions “may deter business and private individuals from investing or moving across borders in the Single Market”. Consequently, the European Institution states that such provisions are in conflict “with the fundamental freedoms the EU, as the free movement of persons, the free movement of workers, the freedom of establishment, the freedom to provide services and the free movement of capital”

3.      Based on these arguments, the European Commission decided to refer Spain to the Court of Justice of the European Union (Case number C-788/19). Specifically, in its claim, the Commission comes to the conclusion that Spain breaches the European legislation by the following:

–          By establishing consequences of the failure to fulfil the obligation to provide information in respect of overseas assets and rights or the late submission of ‘Modelo 720’ (‘Form 720’), which include the classification of those assets as unjustified capital gains which are not subject to the statute of limitation.

–          By automatically imposing a fixed penalty payment of 150% applicable in the event of the failure to fulfil the obligation to provide information in respect of overseas assets and rights or the late submission of ‘Modelo 720’

–          By applying fixed penalty payments in respect of the failure to fulfil the obligation to provide information in respect of overseas assets and rights or the late submission of ‘Modelo 720’, “the level of which is higher than that of the penalties laid down by the general rules on similar infringements”.

In conclusion; although the Commission understands that those measures may be useful to prevent and counter tax avoidance and tax evasion, it also considers that they are absolutely disproportionate, discriminatory and could lead to unfair situations. For this reason, Brussels has comply with the decision adopted last June and has referred Spain to the Court of Justice of the European Union.