La regulación de la publicidad de deudores y defraudadores tributarios
| Autor | Ana Mari?a Delgado y Rafael Oliver |
| Páginas | 21-32 |
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Submission date: October 2016
Accepted date: November 2016
Published in: December 2016
ARTICLE
Regulations governing
the publication of details
of tax debtors and fraudsters*
Ana María Delgado García
Professor of Tax Law
Director of Legal Studies and Political Science
Director of the Master’s programme on Taxation
UOC
Rafael Oliver Cuello
Associate Professor of the Faculty of Business and Communication Studies
University of Vic – Central University of Catalonia
Abstract
One of the legal changes to have generated the greatest media and social interest in Spain with the
amendment to the General Tax Law (Law 58/2003, of 17 December) by means of Law 34/2015, of 21
September, is associated with data protection and privacy.
For public interest reasons, it is now permitted to publish lists of taxpayers with outstanding debts or
penalties of more than €1 million that have not been settled within the voluntary payment period, unless
they have been deferred or suspended.
Additionally, Organic Law 10/2015, of 10 September, provides for the publication of a summary of final,
non-appealable convictions for offences against the Public Treasury, asset stripping, punishable insolvency
and smuggling offences when prejudicial to the Public Treasury.
Ana María Delgado García and Rafael Oliver Cuello
* Paper presented to the 12th International Conference on Internet, Law and Politics: Building a European Digital
Space, (Barcelona, July 2016), under the title “Disclosing the details of Public Treasury debtors and convictions for
tax offences”.
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This is an issue that is clearly connected with personal data protection regulations and with the use
of information and communication technology within the sphere of tax administration, and one that
merits in-depth analysis.
Keywords
taxation, tax debtors, fraudsters, convictions, publication
Topic
Taxation
La regulación de la publicidad de deudores y
defraudadores tributarios
Resumen
Una de las novedades que más interés mediático y social ha provocado la modificación de la Ley 58/2003,
de 17 de diciembre, General Tributaria, mediante la Ley 34/2015, de 21 de septiembre, está relacionada
con la privacidad y protección de datos.
Por razones de interés general, se permite dar publicidad de listados de obligados tributarios con deudas
o sanciones pendientes superiores a un millón de euros, que no hubieran sido pagadas en el plazo de
ingreso voluntario, salvo que se encuentren aplazadas o suspendidas.
Asimismo, se prevé en la Ley orgánica 10/2015, de 10 de septiembre, la publicación de la reseña de las
sentencias condenatorias firmes y no recurribles por delitos contra la Hacienda Pública, de alzamiento de
bienes e insolvencia punible y delitos de contrabando cuando haya un perjuicio para la Hacienda Pública.
Se trata de un tema que tiene claras conexiones con la normativa de protección de datos de carácter
personal y con el uso de las tecnologías de la información y la comunicación en el ámbito de la adminis-
tración tributaria y que merece ser objeto de un análisis en profundidad.
Palabras clave
fiscalidad, deudores, defraudadores, sentencias condenatorias, publicación
Tema
Fiscalidad
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Ana María Delgado García and Rafael Oliver Cuello
1. Publication of the listing of Public
Treasury debtors
1.1. The object of publication and those subject
to it
Law 34/2015, of 21 September, which partially amends
the General Tax Law (Law 58/2003, of 17 December, the
‘GTL’), introduces a new Article 95 a) into the latter entitled
‘Publication of situations of significant non-compliance
with tax obligations’, which establishes that the tax
administration may decide to periodically publish listings
containing Public Treasury debtors for certain tax debts
or penalties. Specifically, this means unpaid tax debts or
penalties whose total amount exceeds the sum of €1 million
and that have not been settled by the voluntary payment
deadline. For these purposes, tax debts and penalties that
have been postponed or suspended are not included.
According to the provisions of this new Article 95 a) GTL on
the information to be published, these listings shall include,
on the one hand, identification of the debtors and, on the
other, the total amount of unpaid debts and penalties taken
into account for publication purposes.
With regard to the identification of the debtors, the law
stipulates that, in the case of natural persons, the given name,
surname(s) and tax identification number (‘NIF’) must be
included. As far as legal persons and the entities set forth in
Article 35.4 GTL (unsettled estates, commonly-held assets and
other undertakings lacking legal personality) are concerned,
the company or trading name and the NIF must be identified.
With regard to the object of the publication of the listing,
Article 95 a) GTL states that, within the scope of the
Spanish state, disclosure shall refer exclusively to Spanish
state taxes where application of the taxes and exercise
of penalty-related and review powers are attributed
exclusively to the tax authorities of the Spanish state,
there being no delegation whatsoever of powers in these
fields to autonomous communities or local authorities.
Additionally, the disclosure regulated in this precept shall
be applicable to the taxes comprising customs-related
debts.
1
With regard to timing aspects, the new Article establishes
that the reference date for establishing the occurrence of
requirements for inclusion in the listing shall be 31 December
of the year preceding the publication resolution, whatever
the unpaid amount on the date of this resolution.
The personal scope of the publication of Public Treasury
debtors has been criticised by some legal scholarship (M.
T. Mata Sierra, 2016) in that it affects defaulting debtors
even if they have complied with their remaining obligations
to the tax authority (as is the case with a taxpayer that
has acknowledged the debt but is unable to settle it during
the voluntary payment period) but not, for example,
those fraudsters who, once discovered, pay the penalty
immediately, thereby avoiding being published in a listing
whose only value, obviously, would be that of being a weapon
in the battle against tax fraud, an addition to the arsenal of
preventative and educational measures that contribute to
voluntary compliance with tax obligations.
2
Another author (B. D. Olivares Olivares, 2015) has also
criticised the substantive scope of the publication of Public
Treasury debtors in that, in this author’s opinion, the tax
assessment from which the debt or penalty arises must
at least become final through the administrative channel
to be in a position to consider disclosing debtors’ details.
3
1. Certain legal scholarship has criticised this difference of treatment between state and EU taxes and autonomous community and local ones
when Article 1 of the GTL says it is, in general, applicable to all tax administrations. According to this opinion, there would appear to be no
clear differences between all these debtors beyond the actual tax giving rise to the debt or penalty, something that should not be important
when bearing the burden of disclosure and which creates a clear inequality of treatment between potential tax debtors, giving rise to a much
more disadvantageous treatment for those in respect of exclusively Spanish state or EU tax debts or penalties (M. T. Mata Sierra, 2016, p. 146).
2. According to this legal scholarship opinion, far from doing so, the possibility of settling the debt to avoid being included in the list has
nothing to do with the concept of setting an example to promote prevention and taxpayer education, but rather is punitive in nature,
causing one to wonder if it would not be better to reform the penalty-related law covering such cases. According to this viewpoint, it does
not appear to be a particularly consistent approach and, clearly, the reputational impact involved in publicising such situations would be
much more justified in the latter than in the former case (M. T. Mata Sierra, 2016, p. 147).
3. According to this legal scholarship opinion, the tax authority must exhaust all the instruments provided to it by the GTL to collect amounts
due since, as this maxim implies, when there are other means of achieving the same end, the one which is least detrimental to personal
data protection law must be chosen (M. T. Olivares Olivares, 2015, p. 19).
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4. According to the opinion of certain legal scholarship, an opinion we share, it is noteworthy that Article 112 GTL contradicts the provisions
of this precept, insofar as it states that two notification attempts must be made, indicating that one shall be sufficient solely in the case
that the addressee is confirmed as unknown at the address. Neither does it provide for any announcements of summons for appearance,
also provided for in this precept. Nevertheless, this is not the GTL’s only exception in this regard, as Article 104 GTL also provides for one
single attempt for notifications of express judgements on issues raised in tax application proceedings. According to this point of view, in
favour of complying with the general notification system is the importance the issue may have for the tax debtor: against it is the fact
that it would delay publication of the listing (M. T. Mata Sierra, 2016, p. 153).
5. This limitation of solely dealing with material or arithmetical errors or errors of fact is, according to one legal scholarship opinion, inacceptable
from the viewpoint of respect for the rights and guarantees afforded taxpayers, who should be able to argue anything available to them in
the law applicable to them, without prejudice to the outcome of the relevant appeals (M. T. Mata Sierra, 2016, p. 153). Nevertheless, in our
opinion it is right to restrict the content of submissions exclusively to material or arithmetical errors or errors of fact, as to begin evaluating
any other submission available in taxpayer law would prolong and complicate the listing publication procedure, without prejudice, obviously,
to the taxpayer being ent itled to lodge the relevant claim (some thing that should, as we have noted above, be clearly indicated in the listi ng).
6. Additionally, the Article states that the data processing required for the publication shall be subject to the provisions of the Organic Law
15/1999, of 13 December, on Personal Data Protection (‘LOPD’), and its Regulations, enacted by Royal Decree 1720/2007, of 21 December.
Obviously, data protection regulations govern this and the other issues affecting the tax administration and the personal information in
its hands (R. Oliver Cuello, 2012, pp. 41-63).
Our viewpoint is that, so as to provide more detailed
information offering greater transparency, the debtors’
listing should provide a breakdown between penalties
and other tax debts. Additionally, it would be advisable to
differentiate between those cases in which the debt is due
to an insolvency procedure and those cases in which the
debt arises from referral of tax liability procedures. It would
also be worth identifying those cases in which the tax debt
is not final through the administrative channel.
We believe that all these tax debts should be included in
the publication of the listing, as currently occurs, but they
should be broken down properly which is not currently the
case. All this would provide the public with much higher-
quality information which would have a positive impact upon
what are, in our opinion, this measure’s goals: transparency,
civic awareness and the fight against fraud.
1.2. The publication procedure
As noted above, the new Article 95 a) GTL provides that the
reference date for establishment of the occurrence of the
requirements set for inclusion in the listing is 31 December
of the year preceding the publication resolution, whatever
the unpaid amount at the date of this resolution.
In this regard, the Article establishes that the affected
debtors shall be given notice of their proposed inclusion in
this listing and that they may present submissions within
ten days of the day following receipt of the notice. For
these purposes, it shall be enough for this notification to be
deemed made when the tax administration can demonstrate
that it has made an attempt to provide notification of the
proposed inclusion containing the full text of its content to
the tax address of the affected party.
4
With regard to the content of the above submissions, the
Article states that they must relate exclusively to material
or arithmetical errors or errors of fact with regard to the
requirements stipulated in Section 1 of the Article. In other
words, they may only refer to whether the unpaid tax debts
or penalties exceed the sum of €1 million, whether or not
they were paid before the voluntary payment deadline or
if they have been postponed or suspended.
5
It also establishes that, as a consequence of the submissions
procedure, the administration may resolve to rectify the
listing when it is reliably demonstrated that the legal
requirements stipulated in Section 1 of Article 95 a) GTL do
not obtain. This rectification may also be decided on an ex-
officio basis. Having carried out any relevant rectifications,
the publication resolution shall be issued. Notification of
this resolution shall be deemed to have occurred with its
publication and that of the listing.
Additionally, the new Article 95 a) GTL indicates that a
ministerial order shall establish the date for publication,
which must occur in all cases in the first six months of each
year, and the associated files and records. As far as the form
of publication is concerned, it states that this shall always
be electronic and that the necessary measures must be
adopted to prevent indexing of its content by Internet search
engines. In this regard, it provides that the listing shall cease
to be accessible three months after the publication date.
6
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With regard to the publication of the debtors’ listing, Article
95 a) GTL establishes, within the scope of the powers of the
Spanish state, that it is the Director General of the State Tax
Administration Agency (Agencia Estatal de Administración
Tributaria, ‘AEAT’) who shall be responsible for issuing this
resolution. The publication of the listing shall specify that
the situation reflected in it is the one at 31 December of
the year preceding the publication resolution, without the
publication of the listing being affected by any debtor actions
subsequent to this reference date in terms of payment of
the debts and the penalties included in it.
Furthermore, the Article indicates that the publication of the
debtors’ listing shall not in any way affect the rebuttal system
established in the Law for actions and procedures arising
from tax debts and penalties or tax application actions and
procedures that have been or may be initiated subsequently
in relation to it. Lastly, Article 95 a) GTL establishes that
actions carried out as part of the publication procedure do
not affect the time limits for the purposes provided for in
Article 68 GTL and that the listing publication resolution
shall put an end to the administrative channel.
As noted above, Article 95 a) GTL states that the date of
publication and the associated files and records shall be
established by ministerial order. This legal provision has
been met by means of Order HAP/2216/2015, of 23 October,
which establishes the publication date and the associated
files and records of the listing of Public Treasury debtors for
tax debts or penalties meeting the conditions established
in Article 95 a) GTL.
In terms of the listing’s date of publication, this ministerial
order specified that the first listing of Public Treasury debtors
for tax debts or penalties meeting the conditions established
in Section 1 of Article 95 a) GTL, with a reference date of
31 July 2015, was to be published on or after 1 December
2015 on the AEAT website (www.agenciatributaria.
gob.es>). This debtors’ listing was first published on 23
December 2015.
7
The first listing of Public Treasury debtors was published
electronically in PDF format, adopting the measures
necessary in light of the state-of-the-art to prevent indexation
of its content by Internet search engines and ensuring that
the listing will cease to be accessible three months after
the publication date in accordance with Article 95 a) GTL.
8
The total amount of the debt to the Public Treasury published
in this first debtors’ listing exceeded €15.6 billion. A total of
345 of the defaulting debtors were natural persons, with a
debt exceeding €700 million, and 4,510 were legal persons,
with outstanding payments of €14.9 billion.
9
Lastly, consideration should also be given to the approval
of Order HAP/364/2016, of 11 March, which establishes, for
2016 and the following years, the publication date and the
associated files and records of the listing of Public Treasury
debtors for tax debts or penalties meeting the conditions
established in Article 95 a) GTL.
10
The listing of Public Treasury debtors for tax debts or
penalties that at 31 December each year meet the conditions
7. The listing of Public Treasury debtors for tax debts or penalties was, pursuant to the provisions of this ministerial order, drawn up on the
basis of the data on unpaid debts and penalties that were neither postponed nor suspended, held in the AEAT information system on the
reference date of 31 July 2015 and irrespective of the amount actually owed by the taxpayers identified in this listing on the publication
date. The listing included the fields permitting identification of the debtors whose information is published, identifiable by their given name,
surname(s) and NIF, if a natural person, and by their full business or trading name and NIF, if a legal person or an undertaking included in
Article 35.4 GTL, an identification associated with the total amount of the debts and penalties owing on the reference date, calculated on
a global basis without any breakdown.
8. Order HAP/2216/2015 states that it is the responsibility of the AEAT Director General to approve, by means of a resolution, the modification
of the computer file of debtors supporting the data which is published and their main characteristics, in the terms provided for in personal
data protection legislation.
9. Of the overall total of €15.6 billion of outstanding debt on this listing, more than €6.5 billion, or 42% of the total, is owed by insolvent
defaulting debtors, i.e. those affected by a procedure in which the possibilities of actual collection of the debt diminish the longer the
insolvency proceedings take. Overall, the listing contains almost 1,700 insolvent debtors, 35% of the total. Additionally, 825 defaulters on
this list are the subject of a referral of secondary or joint liability and not the principal debtor, representing a total amount of €1.5 billion,
close to 10% of the total amount of debt on the list (El Periódico, 23 December 2015, “The Public Treasury listing of defaulters, published
today, includes 4,855 debtors”).
10. As already noted, for 2015, Order HAP/2216/2015, of 23 October, which establishes the publication date and the associated files and records
of the listing of Public Treasury debtors for tax debts or penalties meeting the conditions established in Article 95 a) GTL, had already
been published, with a reference date of 31 July 2015. This latter order also includes a provision on the modification of the computer file
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stipulated in Section 1 of Article 95 a) GTL shall, pursuant
to this ministerial order, be published from 1 May of the
following year on the AEAT website.
According to the provisions of this ministerial order, the
listing of Public Treasury debtors shall be drawn up on
the basis of the data on unpaid debts and penalties that
are neither postponed nor suspended, held in the AEAT
information system on the reference date of 31 December
each year and irrespective of the amount actually owed by
the taxpayers identified in this listing on the publication
date.
The listing shall include the fields permitting identification
of the debtors whose information is published, identifiable
by their given name, surname(s) and NIF, if a natural
person, and by their full business or trading name and
NIF, if a legal person or an undertaking included in Article
35.4 GTL. This identification shall be associated with the
total amount of the debts and penalties owing on the
reference date, calculated on a global basis without any
breakdown.
11
Pursuant to these criteria, the second listing of tax debtors
and fraudsters was published on 30 June 2016, referring
to tax debts or penalties of more than €1 million unpaid at
31 December 2015 and neither postponed nor suspended.
12
1.3. The legal nature and purpose
of the regulation
The preamble to Law 34/2015, of 21 September, on the
partial amendment of the GTL, provides the arguments
justifying the enactment of this regulation, which amongst
other matters governs publication of the listing of Public
Treasury debtors.
In this regard, it indicates that there is a need to bolster the
Public Treasury’s mechanisms for promoting the general
duty of contribution contained in Article 31 of the Spanish
Constitution and the fight against tax fraud, not solely by
means of measures aimed directly and exclusively at its mere
suppression. The principle of transparency and disclosure
forms part of the principles that should govern the actions
of all public authorities to ensure the establishment of an
advanced democratic society.
In this way, the preamble to Law 34/2015 argues that the
measure consisting of the debtors’ listing included in the
GTL should be seen as part of the fight against tax fraud
by means of promoting all manner of preventative and
educational measures contributing to voluntary compliance
with tax obligations, fostering the development of real
civic tax awareness and active disclosure arising from
transparency in public activities associated with information
which it is important the public knows about.
According to the preamble, the measure has complete
respect for the confidentiality of tax data and, therefore,
the principles upon which it is based, and one should not
forget the influence on this issue of protection of the right to
privacy and the need to boost the efficacy of the tax system.
In view of all this, the only object of disclosure will be that
tax-related behaviour which is socially reprehensible from a
quantitatively significant standpoint. It will thus permit the
legislator to disseminate only that conduct which gives rise
to great economic harm to the Public Treasury stemming
from the failure to make payment in the established
of debtors supporting the data which is published and their main characteristics, in the terms provided for in personal data protection
legislation, by means of a Resolution of the AEAT Director General. Accordingly, 2 December 2015 saw publication in Spain’s Official
Gazette, the BOE, of the Resolution of 18 November 2015, which modified and adapted both the computer file on debtors and the one on
debts, such that there was no longer any need to issue a new Resolution for the subsequent publications of the listing.
11. This ministerial order establishes that publication shall be carried out electronically in PDF format, adopting the measures necessary, in
light of the state-of-the-art, to prevent indexation of its content by Internet search engines and ensuring that the listing will cease to be
accessible three months after the publication date, in accordance with Article 95 a) GTL. Lastly, Order HAP/364/2016 states that, for the
purposes of drawing up the listing, use shall be made of the files and records of debtors and debts, modified and adapted in accordance
with the aforementioned Resolution of the AEAT Director General of 18 November 2015, under the terms provided for in personal data
protection legislation.
12. The global amount of the debts included in this listing exceeds €15.7 billion and the total number of debtors is 4,768. Compared with the first
list, the debt figure has increased by 0.7%, whilst the number of debtors has fallen by 1.8%. Of the 4,768 debtors, 336 are natural persons,
with a total debt of less than €700 million, and 4,432 are legal persons, with outstanding payments of more than €15 billion. Compared
to the previous list, the debt owed by natural persons has fallen, but that of legal ones has risen. Additionally, 333 debtors appearing in
the first listing are no longer included in the second one, after fully or partially settling their debt or having secured a postponement or
suspension prior to 31 December 2015.
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voluntary payment periods established in the Law for each
type of debt.
The preamble to Law 34/2015 continues by justifying
the amendment introduced into the GTL, stating that
although the principles of transparency and disclosure
may on occasion clash with other constitutionally-protected
rights, such as those to privacy and of data protection,
the different interests whose protection is sought need
to be weighed up, taking into account the principles of
proportionality, accuracy and data retention contained in
Article 4.1 LOPD.
13
It also explains that in the search for balance between
the rights included in the regulation (those of society as a
whole to seek compliance with tax obligations, and those
of taxpayers with regard to the preservation of privacy),
value-based rules have been introduced for the drawing up
of the lists to be made public.
According to this line of argument, this has been done in
other sectors, introducing this princip le of di sclosure in
different fields in which special protection is advocated.
14
Bearing in mind the innovation the text involves in this point
and the importance of the consequences arising from it,
the regulation chooses to provide direct access to the
administrative courts for those affected parties who regard
the publication as not consistent with the law.
Lastly, the preamble states that Law 34/2015 is completed
by Organic Law 10/2015, of 10 September, which governs
access to, and disclosure of, certain information contained
in judgements issued in respect of tax fraud, as it would
be inconsistent to publish the identity of those who have
ceased to pay their tax liabilities but nevertheless conceal
that of large-scale fraudsters, convicted in a final judgement
of offences of this nature.
A number of authors have expressed criticisms of the
legal nature and purposes of the amendment introduced
by Law 34/2015. One (J. Martín Queralt, 2013) questions
the very need to publish a list of Public Treasury debtors,
highlighting that tax regulations are based on the
confidential nature of data of tax importance (Article 95
GTL). It is therefore not enough to merely introduce a new
precept but, instead, there is also a need to carry out a
proper assessment of the ‘pressing social need’ alluded to
in case law. A need that, in the case of defaulting debtors,
is, according to this legal scholarship opinion, very difficult
to perceive.
15
Other legal scholarship positions (B. D. Olivares Olivares,
2015) have criticised the fact that this measure aims to
impose an ancillary penalty upon anyone committing a
violation against, or owing amounts to, the tax administration.
Specifically, according to this opinion it aims to damage the
person’s reputation for the purposes of making an example
of them due to the magnitude of the harm caused to the
Public Treasury. The reason for this disclosure is, according
to this viewpoint, one of punishment, adding to the tax
penalty one of social reproach through the publication
of personal information. Therefore, the measure aims to
leverage this public reproach to prevent the repetition of
such behaviour.
16
The penalty-related nature of the measures adopted by
means of Law 34/2015 is also highlighted by another author
(A. Cayón Galiardo, 2015). He states that we are dealing
with measures that represent a direct or indirect penalty,
and that the purpose that inspires them—according to the
13. This is also the case, according to the preamble, in other nearby countries such as Germany and Finland, which have a number of exceptions
to the general principle of the confidentiality of tax data.
14. This is the case in the financial sector, in the field of occupational health and safety and, recently, with regard to penalties for senior
management, all areas in which the efficacy of this type of measure in achieving the goals sought has been noted.
15. This author believes that this need is not imposed by the exercise of administrative powers and, furthermore, is by no means the only
measure that can be adopted to enforce the duty to contribute (J. Martín Queralt, 2013, p. 2).
16. According to this author, this regulation’s restriction on the right to control over data affects core aspects of the fundamental right to
the protection of personal data. The owner of the information will have no right to consent to its processing in light of the change in the
initial purpose of the public assignment nor, possibly, will they be informed of this processing prior to publication. With regard to rights,
according to this opinion the right of rectification is restricted and the rights to access and cancellation may also be limited, given the use
of the broad concept established in Article 23.2 LOPD. For these reasons it is this author’s belief that, following the precedent set by the
Constitutional Court, there is, with these restrictions, a clear risk of breaching the essential content of the right to protection of personal
data, in that it may make it impracticable, more difficult than is reasonable or strip it of the required protection (B. D. Olivares Olivares,
2015, pp. 17 and 19).
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17. According to this legal scholarship opinion, this is not a measure that is going to reduce defaults (something that has, during the economic
crisis, been noted as a serious problem that has affected the economy as a whole) as it does not even mention those cases in which it is
the tax authority that is late in paying the taxpayer. Instead, it highlights the penalty-related intent, including the intention for disclosure
of the information to have a prejudicial effect upon the defaulting taxpayer, as everyone can be aware of the tax situation of those with
whom they do business, such that they can avoid entering into loans and transactions with persons who may put them at risk (A. Cayón
Galiardo, 2015, pp. 15 and 31).
18. Disclosure of protected data (tax information) does not, according to this author, afford any ‘educational’ effect that may justify violation
of the right to privacy (J. Calvo Vérgez, 2015, p. 13).
19. Accordingly, this author suggests incorporating inclusion in a listing of fraudsters as an ancillary penalty in Article 186 GTL and that no
provision should be made with respect to defaulters since, although they may be a nuisance to the tax administration, they have committed
no violation, and they are already under enough pressure from enforcement period surcharges and late payment interest (S. L. Doncel
Núñez, 2016, pp. 108 and 109).
20. However, as this author rightly points out, these measures will not lead to radical change in the tax avoidance schemes of multinationals in
the digital economy (true taxation ‘black holes’). These disclosure measures, which have been the object of disproportionate and self-serving
criticism, are barely two drops in the ocean, two footnotes in the fight against fraud. As this author rightly points out, in the recent reform
of the GTL it was doubtless more appealing, impactful and media-savvy to divert attention towards petty aspects of the reform of the GTL,
publicity-related aspects typical of the ‘showbiz society’, but ones that are also very worthwhile due to their preventative and educational
impact. Accordingly, this author concludes that, even though we may classify them as small arms, we support both the publication of the
listing of defaulters and the one for tax offenders (D. Carbajo Vasco, 2015, p. 20).
regulations bringing them into force—provides only very
dubious justification since closer examination reveals that
the disclosed purpose is neither the only nor (possibly) even
the main one. According to this viewpoint, the disclosed or
declared purposes sought by the publication of these listings
are coincidental to those of a substantially penal sanction:
on the one hand, to intimidate defaulting debtors into no
longer delaying payment of their taxes and, on the other,
to have a dissuasive effect to reduce fraud. This is the case
irrespective of any positive impact on tax collections that
may also be achieved.
17
Similar pronouncements have been made by another author
(J. Calvo Vérgez, 2015), who believes that this law gives rise
to the imposition of a sort of ancillary penalty upon those
committing a violation against or owing money to the tax
administration, reflected in the social reproach represented
by the publication of personal information. This is despite
the fact that they are taxpayers who, although they have
recognised their debt with the tax authority, cannot settle it
within the voluntary period. According to this viewpoint, it is
not acceptable that protection of the constitutional duty to
contribute entails the disclosure of information that, given
its nature and purposes, is confidential, thereby stigmatising
the defaulter.
18
Another author (S. L. Doncel Núñez, 2016) argues
that the listings of Public Treasury data have a clearly
penalty-related nature, on the basis that their repressive
purpose is made clear in the fact that what is sought by
this publication is not so much transparency or that the
public is made aware of who the greatest defaulters or
fraudsters are, but rather that the latter suffer public
scorn. In short, according to this legal scholarship position,
this is a penalty whose purpose is to make a public example
of these taxp ayers.
19
On the other hand, another author (D. Carbajo Vasco, 2015)
is in favour of the measures adopted with regard to the
disclosure of listings of Public Treasury debtors and the
one for convictions for tax offences. We share this author’s
opinion, which is that disclosing recalcitrant defaulters and
those with large amounts of debt with the Public Treasury
(more than €1 million) and convictions for tax offences has
a clearly preventative and educational mission against
antisocial behaviour.
20
In our opinion, publishing listings of Public Treasury debtors
is not a punitive measure, but rather a regulation aimed at
transparency and at informing the public about matters of
importance. This disclosure may develop civic awareness
of the importance of paying taxes, something that is—in our
view—important to foster with the aim of boosting voluntary
compliance with tax-related obligations.
We are therefore in agreement with Spain’s State Council
(Consejo de Estado) which, when analysing the draft of
this new Article 95 a) GTL, stated that ‘it seems clear it is
not structured as a kind of penalty for taxpayers unable to
make payment of their debt within the voluntary period
but, rather, the aim of it is to achieve certain goals of
administrative efficacy and transparency’, and it highlights
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21. State Council Opinion 130/2015, of 19 April.
‘the preventative, informative, and educational purpose of
the planned provision’.
21
To sum up, the aim of these measures for disclosing Public
Treasury debtors and those for disclosing convictions for
tax offences i s to make so ciety aware of a problem of
great current importance: defaulting in payments to the
Public Treasury and tax fraud. These transparen cy and
disclosure measures are not punitive in nature, and nor
do they solely aim to encourage the debtor to pay, but
rather they attempt to raise public awareness of tax issues,
providing important information for taxpayers who fulfil
their tax duties and who are entitled to know about the
tax-related non-compliances with the greatest impact upon
the Public Treasury.
2. Publication of convictions
for tax offences
2.1. Publication content and procedure
Organic Law 10/2015, of 10 September, governing access
to and publication of certain information contained in
convictions issued on tax fraud, introduces Article 235 b)
into Organic Law 6/1985, of 1 J uly, on Judiciary Powers
(‘LOPJ’).
This new Article states that public access must be provided
to personal data contained in the wording of judgements
resulting in final convictions when they have been issued
in respect of the offences included in Articles 305, 305
a) and 306 (on offences against the Public Treasury), of
Organic Law 10/1995, of 23 November, on the Criminal Code
(‘CC’); Articles 257 and 258 of the CC (on offences of asset
stripping and punishable insolvency), when the defrauded
creditor is the Public Treasury; and Article 2 of Organic Law
12/1995, of 12 December, on the repression of smuggling
(smuggling offences), provided that harm has been caused
to the Spanish State or the European Union Treasury.
Under the provisions of Article 235 b) of the LOPJ, the Clerk
of the Court shall issue a certificate placing on record the
following information: a) that which permits identification of
the judicial proceedings; b) the given name and surname(s)
or business name of the convicted party and, as the case
may be, the one with civil liability; c) the offence of which
they have been convicted; d) the penalties imposed; and e)
the amount associated with the harm caused to the Public
Treasury, of all types, according to the provisions of the
judgement. As an organisational measure, the Clerk of the
Court shall order its publication in the BOE.
Lastly, this legal precept establishes that this disclosure
of convictions shall not be applicable should the convicted
party or, as the case may be, the one with civil liability
have settled or deposited in the court’s escrow account the
entirety of the amount of the harm caused to the Public
Treasury, of all types, prior to the judgement becoming
final.
2.2. The regulation’s justification
The preamble to Organic Law 10/2015, of 10 September, which
governs access to, and disclosure of, certain information
contained in judgements issued in respect of tax fraud,
justifies the law by stating that the principle of disclosure
of judicial actions and judgements issued by the courts is
enshrined in Article 120 of the Spanish Constitution, and is a
principle linked with that of judicial transparency and public
oversight of proceedings, conceived of as fundamental
guarantees of this principle.
It argues that the rights to reputation or privacy, although
constitutional ly enshr ined, are not absolute but rather
legally configured and, as such, the legislator may introduce
exceptions and limits for public interest reasons and,
particularly, when they clash with other values also included
in the Constitution.
In this regard, the preamble indicates that, in the specific
case of tax fraud offences, the public interest supersedes
the interests of the convicted party. It should be borne
in mind that the legal good protected in these cases has
been raised to a constitutional level in Article 31 of the
Spanish Constitution. This is of importance in weighing
priorities here, since it should not be forgotten that the
constitutional duty to contribute to the sustenance of public
expenditure has, as its flipside, the right of society as a
whole to demand compliance with tax obligations, as well
as oversight over the activities of all the public authorities
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in the fight against tax fraud, and the implementation in
this specific field of the general principle of transparency
in providing information on public activities and, most
especially, judicial actions.
22
The end purpose is, therefore, to bolster, in this specific
field, the principles of judicial disclosure, transparency and
effectiveness in public activities, which, in that they are
constitutionally enshrined and guarantees of securing the
public interest, must prevail in this case over individual rights
to privacy or data protection.
One author (J. Martín Queralt, 2013) has criticised this
measure on the publication of convictions for tax offences,
stating that as far as large-scale fraudsters are concerned,
it is difficult to argue that they deserve special reproach,
different to that applicable to other far more serious
offences involving stiffer sentences.
23
In our opinion, these disclosure measures are not penalties
in nature. We agree with Spain’s General Council of the
Judiciary (‘GCJ’)
24
when, in its report on this legislative
measure and whilst admitting that disclosing a conviction
may constitute a burden to the person affected, it holds
that higher reasons of information and the fight against
tax fraud prevail. In this regard, it states that ‘it cannot
be said that the measure is mainly and purely a penalty
or additional punishment in nature, since, in such a case,
it ought to be included in the Criminal Code and be ruled
upon by the judge.’
3. Conclusions
The regulation on publication of listings of Public Treasury
debtors seeks to promote transparency and to inform the
public on matters in its interest. We are not, therefore,
dealing with a measure that is a penalty in nature, but rather
the goal of this disclosure is to help develop civic awareness
of tax issues, something that is important to foster with the
aim of increasing voluntary compliance with tax obligations.
Nevertheless, in our opinion and to provide more detailed
information for the purposes of greater transparency, the
debtors’ listing should provide a breakdown between penalties
and other tax debts. It would also be advisable to distinguish
between those cases in which the debt is due to insolvency
proceedings and those cases in which the debt arises from
tax liability referral proceedings. It would also, in our opinion,
be worthwhile to identify cases in which the tax debt has
not yet become final through the administrative channel.
The aim of these measures publicising the details of Public
Treasury debtors and those disclosing convictions for
tax offences is to convey to society a serious problem in
today’s world, that of defaulting on payments to the Public
Treasury and tax fraud. The intention of these transparency
and publicity measures is not solely to incentivise payment
by debtors, but also to increase public awareness of tax
issues, providing important information for taxpayers who
comply with their tax duties and who have a right to be given
information on the tax non-compliances with the greatest
impact upon the Public Treasury.
22. The Law also notes, in this preamble, that convictions for tax fraud-related offences are of great importance outside of court proceedings,
since a number of different regulations establish consequences stemming from such convictions in the fields of public procurement, public
grants and in the intervention in, and discipline of, financial institutions, whose application is only effective if they are disclosed, even if
only partially.
23. This author believes that, from this viewpoint and leaving other specific considerations belonging to the field of criminal law aside, when
comparing offences constituting a serious felony, it is tricky to argue that only those involving offences against the Public Treasury are
deserving of dissemination or disclosure (J. Martín Queralt, 2013, p. 2).
24. GCJ report on the Draft Organic Law governing access to information contained in tax fraud convictions, 11 May 2015.
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References
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CARBAJO VASCO, D. (2015). “La publicidad de los delitos fiscales y la lucha contra el fraude fiscal: un
apunte”. Dossier de la reforma de la Ley General Tributaria. Thomson Reuters, pp. 20-21.
CAYÓN GALIARDO, A. (2015). “La publicación del listado de morosos y de la identidad de los defraudadores
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DONCEL NÚÑEZ, S. L. (2016). “El listado de deudores a la Hacienda Pública y la publicidad de sentencias
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Centro de Estudios Financieros, no. 395, pp. 97-110.
MARTÍN QUERALT, J. (2013). “Listas de morosos o de defraudadores… esa es la cuestión”. Tri bu na Fi sc al ,
no. 265, pp. 1-4.
MATA SIERRA, M. T. (2016). “La publicación de listas de deudores y la publicación de fallos de sentencias
condenatorias por ciertos delitos”. In: I. MERINO JARA (ed.). Estudios sobre la reforma de la Ley
General Tributaria, pp. 139-165. Barcelona: Huygens.
OLIVARES OLIVARES, B. D. (2015). “La publicidad de los deudores tributarios desde la perspectiva del
derecho a la protección de los datos personales”. Revista Quincena Fiscal, no. 11, pp. 1-20.
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Recommended citation
DELGADO GARCÍA, Ana María; OLIVER CUELLO, Rafael (2016). “Regulations governing the publication of
details of tax debtors and fraudsters”. IDP. Revista de Internet, Derecho y Política. No. 23, pp. 21-32.
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Regulations governing the publication of details of tax debtors and fraudsters
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Rafael Oliver Cuello
rafael.oliver@uvic.cat
Associate Professor of the Faculty of Business and Communication Studies
University of Vic – Central University of Catalonia
Universitat de Vic
Sagrada Família, 7
08500 Vic
About the author
Ana María Delgado García
adelgadoga@uoc.edu
Professor of Tax Law
Director of Legal Studies and Political Science
Director of the Master’s programme on Taxation
UOC
UOC
Av. Carl Friedrich Gauss, 5
08860 Castelldefels
