El Suministro Inmediato de Información en el impuesto sobre el valor añadido

Autor:Ana María Delgado García - Rafael Oliver Cuello
Cargo:Catedrática de Derecho Financiero y Tributario Directora de los Estudios de Derecho y Ciencia Política Directora del máster universitario de Fiscalidad Universitat Oberta de Catalunya, ES - Profesor de Derecho ESERP Business School, ES
Páginas:83-93
RESUMEN

El Suministro Inmediato de Información es el nuevo sistema de gestión del impuesto sobre el valor añadido, que supone un importante avance en la administración electrónica en el ámbito tributario, así como una intensificación del uso de las tecnologías de la información en las relaciones entre la administración tributaria y el contribuyente.
Este nuevo sistema de gestión del impuesto sobre el valor añadido implica la llevanza de los libros registro a través de la sede electrónica de la Agencia Estatal de Administración Tributaria, mediante el suministro prácticamente inmediato de los registros de facturación. Los contribuyentes deben remitir a la administración tributaria los detalles sobre la facturación por vía electrónica, y con esta información se van configurando, casi en tiempo real, los libros registro del tributo.
Los objetivos de la introducción de este nuevo sistema de gestión tributaria son dos. Por un lado, la potenciación de la asistencia al contribuyente, al facilitarle una serie de datos fiscales, en una primera fase, y el borrador de la declaración del impuesto, en una segunda fase. Por otro lado, se pretende un mayor y más eficiente control tributario, al disponer de información de calidad en un tiempo muy reducido.

 
CONTENIDO
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Submission date: June 2017
Accepted date: July 2017
Published in: September 2017
ARTICLE
The Immediate Supply of
Information in value added tax*
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
Full Professor of Law
ESERP Business School
Abstract
The Immediate Supply of Information (Suministro Inmediato de Información) system is S pain’s new
system for managing value added tax and represents a significant advance in tax-related e-government,
as well as an increase in the use of information technologies in interactions between the tax authorities
and taxpayers.
This new system entails the keeping of record books via the State Tax Administration Agency website,
by means of the virtually immediate submission of invoicing records. Taxpayers must forward invoicing
details to the tax authorities via the Internet, and this information updates, almost in real time, the
records kept for the tax.
Two goals lie behind its introduction. Firstly, to enhance taxpayer support by providing them, initially,
with a range of tax data and, subsequently, with a draft tax return; and secondly, to provide greater and
more efficient tax control by making quality information available very quickly.
Keywords
Value added tax, Immediate Supply of Information, invoicing, tax records, e-government
Topic
Taxation
* Paper presented at the 13th International Conference on Internet, Law and Politics: Managing Risk in the Digital
Society, (Barcelona, June 2017), under the title “El Suministro Inmediato de Información en el impuesto sobre el valor
añadido”.
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The Immediate Supply of Information in value added tax
El Suministro Inmediato de Información en el impuesto
sobre el valor añadido
Resumen
El Suministro Inmediato de Información es el nuevo sistema de gestión del impuesto sobre el valor añadido,
que supone un importante avance en la administración electrónica en el ámbito tributario, así como una
intensificación del uso de las tecnologías de la información en las relaciones entre la administración
tributaria y el contribuyente.
Este nuevo sistema de gestión del impuesto sobre el valor añadido implica la llevanza de los libros
registro a través de la sede electrónica de la Agencia Estatal de Administración Tributaria, mediante el
suministro prácticamente inmediato de los registros de facturación. Los contribuyentes deben remitir a
la administración tributaria los detalles sobre la facturación por vía electrónica, y con esta información
se van configurando, casi en tiempo real, los libros registro del tributo.
Los objetivos de la introducción de este nuevo sistema de gestión tributaria son dos. Por un lado, la
potenciación de la asistencia al contribuyente, al facilitarle una serie de datos fiscales, en una primera
fase, y el borrador de la declaración del impuesto, en una segunda fase. Por otro lado, se pretende un
mayor y más eficiente control tributario, al disponer de información de calidad en un tiempo muy reducido.
Palabras clave
impuesto sobre el valor añadido, Suministro Inmediato de Información, facturación, libros registro fiscales,
administración electrónica
Tema
Fiscalidad
1. Introduction
The Immediate Supply of Information (Suministro Inmediato
de Información, SII) is Spain’s new system for managing
value added tax (VAT) and represents a significant advance
in tax-related e-government, as well as an increase in the
use of information technologies in interactions between the
tax authorities and taxpayers.
This new system entails the keeping of records via the
State Tax Administration Agency (Agencia Estatal de
Administración Tributaria, AEAT) websi te, by me ans of
the virtually immediate submission of invoicing records.
Taxpayers must forward invoicing details to the tax
authorities via the Internet and this information updates
the tax records, almost in real time.
Taxpayers covered by the S II system are obliged to keep
records of invoices issued, invoices received, capital assets
and certain intra-Community transactions via the AEAT
website, by supplying invoicing records over the Internet.
This information is submitted online, specifically by means
of web services based on the exchange of XML messages.
The submission is structured with a common header on the
holder of each record book, and information on the tax year
and period in which said transactions are recorded. This
header is accompanied by a block with the invoice content.
It is important to clarify the fact that this new VAT
management system does not establish an obligation to
send invoices to the AEAT, since what must be sent are the
invoicing record fields specified in Order HFP/417/2017, of 12
May, governing the regulatory and technical specifications
implementing the keeping of VAT records on the AEAT website.
With regard to the regulations applicable to this new VAT
management system, it should be noted that, firstly, Law
34/2015, of 21 September, modifying the General Taxation
Law (Ley General Tributaria, LGT), introduced changes
to Article 29, on formal tax obligations, providing for, in
Section Three, with regard to record books, the possibility
of governing the obligation to keep said books by electronic
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The Immediate Supply of Information in value added tax
means through a regulatory standard. Article 200 was also
modified to classify a delay in the duty to keep record books
and submission via the AEAT website as a tax infringement.
Pursuant to Final Provision 12 of the LGT, both precepts
came into force on 1 January 2017.
Regulatory implementation of the SII system is contained,
fundamentally, in Royal Decree (RD) 596/2016, of 2 December,
for the modernisation, improvement and promotion of the
use of electronic media in value added tax management.
Also applicable are the Resolution of 13 March 2017, of the
AEAT Directorate-General, approving the standardised
document for demonstrating representation of third parties
in the procedure for the electronic submission of invoicing
records via the AEAT website, and Order HFP/417/2017, of 12
May, governing the regulatory and technical specifications
implementing the keeping of VAT records via the AEAT website.
Finally, Royal Decree 529/2017, of 26 May, modifying the
Value Added Tax Regulation (RIVA) approved by Royal Decree
1624/1992, of 29 December, should also be borne in mind.
2. The goals of the new management
system
The introduction of this new tax management system has
two goals. Firstly, to boost taxpayer support by providing
them, initially, with a range of tax data and, subsequently,
with a draft tax return; and secondly, to provide greater and
more efficient tax control, by making quality information
available very quickly.
RD 596/2016 makes reference to a third motive: adaptation
to come into line with new technologies. The preamble to this
piece of legislation indicates that different forms of record
keeping have seen deep-seated changes, from the time
when the obligation to keep them was first established up
until the present day, in accordance with the development of
new technologies, progress in the use of electronic media by
Spain’s business community and the gradual implementation
of e-invoicing. As such, there are currently only a residual
number of businesses and professionals not using electronic
or computerised means for keeping record books.
In this regard, said preamble notes that “it appears
reasonable to assume that the substantial progress made
in the keeping of record books means that the system for
keeping them can be transformed into a more modern one
that brings the time of recording or accounting for invoices
closer to the actual occurrence of the underlying financial
transaction”.
However, in our view, the main goal of the SII system is tax
control. It is obvious that the purpose of the obligation to
immediately provide information to the AEAT is to allow
the tax authorities to carry out more thorough monitoring
of the truthfulness of the self-assessment returns filed, in
order to be able to prevent tax fraud by ensuring that the
VAT falling due is actually declared in the period in which
the taxable event has arisen.
The preamble to RD 596/2016 refers to this core goal of the
SII system, when it indicates that control and prevention
of tax fraud are priority objectives for the AEAT and that,
to this end, there is a need to have suff icient, quality
information and for it to be obtained as soon as possible.
Nevertheless, said law points out that “there needs to be
due balance between obtaining the information that is key
to the proper conduct of review and investigation activities
and the indirect costs that the supply thereof represents
for taxable persons”. In this regard, the new system for
keeping records on the website “not only facilitates the
fight against tax fraud, but also represents an improvement
in the quality of data and the proper implementation of
accounting practices, as well as a cost saving and greater
efficiency that will benefit all economic operators”.
In addition to this tax control objective, one should not
forget the aforementioned enhanced support for taxpayers,
who are provided, initially, with a range of tax data and,
subsequently, with a draft tax return. This objective is also
referred to in the preamble to RD 596/2016, when it states
“the information obtained from the electronic submission
of invoicing records shall be made available to those
businesses or professionals with whom transactions have
been carried out by those persons and undertakings that,
either compulsorily or voluntarily, keep record books via the
website, constituting a tool to assist taxpayers in preparing
their value added tax self-assessment returns”.
From the taxpayer’s viewpoint, the SII system undoubtedly
represents a considerable increase in indirect costs,
particularly initially, during their efforts to come into line
with the new regulations. We shall in due course see, as
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The Immediate Supply of Information in value added tax
said preamble to RD 596/2016 proclaims, whether or not
there is “due balance between obtaining information that
is key to the proper conduct of review and investigation
activities and the indirect costs that the submission thereof
represents for taxable persons”.
In addition to these disadvantages, there are also some
advantages for the taxpayer, such as the aforementioned
enhancement of taxpayer support. This involves,
fundamentally, obtaining tax data, as taxpayers will have
one “declared” register and another “comparative” register
on the AEAT website, with the comparative information from
third parties belonging to this system or the AEAT database.
Taxpayers will be able to check this information prior to
the deadline for filing their monthly VAT return. They will
also have the possibility of correcting any errors made in
submissions, without being required to do so by the AEAT.
Other advantages of the SII system for the taxpayer include,
on the one hand, the availability of quality information in a
sufficiently short period of time in order to speed up the VAT
management system. On the other, there is the reduction
in the requests for information made by the AEAT, as many
of the current requests are for record books, i nvoices or
information contained therein to check certain transactions.
Some other possible advantages of the new SII for taxpayers
are the modernisation and standardisation of the way
that VAT records are kept, the reduction in certain formal
obligations, by abolishing the requirement to file forms
(Modelos) 347, 340 and 390, the reduction in repayment
periods, with the AEAT receiving information on transactions
almost in real time and in more detail and, finally, the fact
that taxpayers included in the new system will see the
deadline for filing and payment of VAT self-assessment
returns extended by ten days.
3. Subjective scope
According to Articles 62.6 and 71.3.5 of the RIVA, the SII
system is compulsory for businesses, professionals and
other taxable persons whose settlement period coincides
with the calendar month: large companies (with a turnover
of more than 6,010,121.04 euros in the preceding year), VAT
groups and those registered in the REDEME (the monthly
VAT refund register).
It may also be used voluntarily by those exercising the option
in the associated tax registration form, in which case their
returns will be monthly.
With regard to large companies, it is extremely important
to correctly establish the volume of transactions at 31
December. It is vital to calculate said amount properly in
the first few days of each year, without waiting until the
deadline for filing the self-assessment return for the last
period of the preceding year.
1
With regard to the SII system’s subjective scope, it should
be noted that RD 596/2016 did not expressly exclude those
taxpayers applying the special simplified VAT scheme from
its scope of application. In other words, it was interpreted
that said taxable persons could opt to apply the SII system.
Such a possibility was not logical given the uniqueness of
the special scheme and the modifications that were to take
place from 2018 on, such as the reduction in the income and
expenditure limit to be included within the objective scope
of application of the special scheme.
Therefore, RD 529/2017, of 26 May, modifying the RIVA, added
a fifth transitional provision to this regulation, governing
the option for keeping records via the AEAT website on the
part of taxpayers under the simplified scheme for 2017. It
states: “notwithstanding the provisions of Ar ticles 62.6 and
68 bis of the RIVA, taxpayers under the simplified scheme
may not opt to keep their record books via the AEAT website,
effective from the 2017 tax year”.
Accordingly, taxpayers taking exclusive advantage of the
special simplified scheme in 2017 may not opt to apply the
SII system. However, given the above wording, they may
able to do so for 2018, unless a new exception is provided
for before the end of 2017.
1. As Longás Lafuente quite rightly points out (2017a, p. 52), given that the information must be forwarded within four calendar days of
the invoice being issued, any business or professional with doubts regarding the volume of transactions in the immediately preceding
tax year must calculate this in the first few days of the calendar year, with regard to the invoices to be issued in said days, as there is no
requirement to supply the information if it is below the amount indicated in Article 121 LIVA, unless voluntarily forming part of the SII.
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The Immediate Supply of Information in value added tax
Additionally, we should query what happens with those taxable
persons not established in the tax’s territory of application.
In this regard, it should be remembered that businesses
and professionals, or taxable persons, not established in
the territory of application of the tax that have a duty to
file monthly self-assessment returns, have an obligation to
keep VAT records via the AEAT website. Nevertheless, it is
unclear whether this obligation concerns all the transactions
of non-established businesses and professionals or
only those located in the tax’s territory of application.
2
It is also worth analysing what happens to those taxable
persons in the special agriculture, livestock and fishery
scheme. Those exclusively carrying on activities included
in this special scheme only need to keep the records
associated with their special scheme and have no duty to
provide information thereon via the SII system, as Article
62.6 of the RIVA only makes reference to the record books
listed in Article 47.2 of that same regulation. Therefore,
these businesses cannot use the SII system, which is logical
given that the purpose of taxable persons using this special
scheme is to simplify tax management for them.
Another similar case is that of those taxable persons in
the additional surcharge (recargo de equivale ncia) scheme.
Taxable persons in this scheme have no duty to keep records
for VAT purposes. Therefore, if a taxable person exclusively
carries on activities covered by the special additional
surcharge scheme, they cannot opt into the SII system, for
the same reason as with the special agriculture, livestock
and fishery scheme: simplification of tax management.
Taxable persons exclusively carrying on activities that are
exempt from or not subject to VAT do not fall within the
subject scope of application of the SII system in cases where
the taxable person is not granted the right to deduction,
pursuant to Articles 92 and 94 of the Law on Value Added
Tax ( Ley del Im pues to sob re el Valor A ñadi do, LIVA), as they
do not have to file self-assessment returns for the tax. On
the other hand, businesses or professionals carrying on
exclusively exempt activities or transactions that do give
rise to the right to make deductions (such as exports or the
intra-Community supply of goods), do have the obligation
to file self-assessment returns for the tax, and so do fall
within the subjective scope of application of the SII system.
Therefore, they could constitute taxable persons with a duty
to supply information on record books via the AEAT website
(if they fall within one of the contemplated categories) or
may voluntarily use said system.
Finally, with regard to those businesses or professionals
commencing an economic activity subject to VAT, in the tax
year in which said activity commences, only those taxable
persons with a monthly return period will be required to
supply information on their records via the AEAT website.
Furthermore, and again in the first year of the carrying on
of the activity, taxable persons that must apply this system
exclusively on the basis of the volume of transactions are
excluded from this obligation, as the relevant figure (the
preceding year’s turnover) is not available in the first year
of operation. The SII system shall also apply to businesses
or professionals under the monthly repayment scheme,
and to those taxable persons that voluntarily seek to form
part of the SII system, opting to do so when filing their
commencement of activity return, with said option being
applicable in the current calendar year.
4. The option for web-based keeping
of record books
Pursuant to Article 68 bis of the RIVA and Transitional
Provision (TP) 1 of RD 596/2016, the option for the keeping
of records in electronic form via the AEAT website must be
exercised during the month of November prior to the start
of the calendar year in which it must take effect, by filing
the relevant tax registration form (form 036) or when filing
the commencement of activity return, with effect, in this
last case, in the current calendar year.
The option for applying the SII system from 1 July 2017 on
must be exercised during the month of June. This option
shall be deemed to be extended to subsequent years unless
2. In Longás Lafuente’s opinion (2017a, p. 55-56), it is a question of ascertaining the extent to which the national legislature can impose
an obligation that affects the entirety of a non-established taxable person’s economic activity, with a clash in this regard between the
anti-fraud objective of the SII system, which would entail a general duty of submission, and that of territorial tax-raising powers, which
establishes that this obligation is limited to those transactions located in the tax’s territory of application, and that the latter should be
the expected conclusion, without prejudice to the collaboration procedures that may arise between EU Member States in the case of
companies established in the territory of another Member State.
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The Immediate Supply of Information in value added tax
renounced, and the obligations of the SII system must be
fulfilled at least in the opt-in year.
Notification of renouncement must be made by filing the tax
registration form (form 036) during the month of November
prior to the start of the calendar year in which it must take
effect. Exclusion from REDEME shall entail exclusion from
the SII system with effect from the first day of the return
period in which the exclusion resolution has been notified,
unless the settlement period remains monthly.
Removal from the special scheme for groups of undertakings
shall give rise to removal from the SII system with effect
from date of occurrence of the former, unless the settlement
period remains monthly.
As noted above, taxable persons obliged to apply the new
SII system from 1 July 2017 include those (whether a large
company or not) that file their VAT self-assessment returns
monthly after registering with the REDEME, as well as those
taxable persons applying the special scheme for groups
of undertakings. Since the publication of RD 596/2016,
the tax authorities had been indicating that they would be
establishing an extraordinary period for de-registering from
the REDEME and for renouncing application of the special
scheme for groups of undertakings.
Following publication of Order HFP/417/2017, of 12 May,
modifying the 036 and 037 tax registration forms, there was
a need to set up a period prior to the entry into force of the SII
system to exercise the above options (using the 036 form).
So, RD 529/2017, of 26 May, modifying the RIVA, governs both
options, adding TP 4 to the RIVA, entitled “Extraordinary
de-registration from the monthly repayment register and
extraordinary renouncement of the application of the
special scheme for groups of undertakings during 2017”.
Thus, taxable persons registered with the REDEME
governed by Article 30 of the RIVA may request voluntary
de-registration therefrom, filing an application up to and
including 15 June 2017, with effect from 1 July 2017.
For their part, undertakings applying the special scheme for
groups of undertakings governed by Chapter IX of Title IX
of the LIVA may renounce application thereof by submitting
said renouncement on or before 1 July 2017. By the same
deadline, undertakings in the special scheme for groups of
undertakings may submit an application for de-registration
from REDEME, which shall be submitted by the parent
undertaking and must refer to the entirety of the group
undertakings to which the special scheme applies.
5. Content of the information
to be supplied
As established by Articles 62.6, 63.3 and 64.4 of the RIVA,
undertakings included in the SII system must include additional
information to that contemplated for traditional records.
With regard to the record book of invoices issued: the type
of invoice (complete or simplified, invoices issued by third
parties and receipts from the special agriculture, livestock
and fishery scheme, amongst others); identification of
record rectification; description of the transaction; rectifying
invoice (identified as such, reference to the rectified invoice
or details modified); replacement invoices (reference to the
invoices replaced or details replaced); invoicing by recipient;
reverse charges; special schemes (travel agents, used goods,
cash accounting, groups of undertakings, investment gold);
settlement period of transactions; indication of transaction
that is not subject to or exempt from VAT; AEAT invoicing
agreement, if applicable; and any other information of tax
importance established by means of ministerial order.
With regard to the record of invoices received: the receipt
number is replaced by the invoice number and series;
identification of record rectification; description of the
transaction; invoicing by recipient; reverse charges;
intra-Community acquisition of goods; special schemes
(travel agents, used goods, cash accounting, groups of
undertakings); amount of deductible VAT for the return
period; return period in which transactions are recorded;
accounting date and customs document number in the case
of imports and any other information of tax importance
established by means of ministerial order.
The electronic supply of invoicing records shall be carried
out via the AEAT website using web services or an electronic
form with the record fields approved in the relevant
ministerial order.
In this regard, one should bear in mind the provisions of
Order HFP/417/2017, of 12 May, governing the regulatory and
technical specifications implementing the keeping of VAT
records via the AEAT website. The purpose of this ministerial
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The Immediate Supply of Information in value added tax
order is to implement the modifications required for the
proper implementation of RD 596/2016. As such, this Order
HFP/417/2017 contains the record fields to be provided in the
VAT record books and the form on which the information is
to be supplied via the AEAT website.
With regard to the content of the records of invoices issued,
it establishes the types of invoice recorded: complete,
simplified, rectifying, issued to replace simplified invoices or
summary entry. It also indicates which of the transactions of
tax importance that had previously been notified via forms
347 or 340 need to be identified: travel agencies’ invoices,
pursuant to Additional Provision (AP) 4 of the Regulation,
governing invoicing duties, business premise leasing
transactions, collection of professional fees on behalf of
third parties, amounts received on disposals of properties
subject to VAT, amounts received in cash of more than 6,000
euros per year and insurance undertaking transactions for
which no invoice is issued. These last two transactions shall
be notified annually.
With regard to the content of the records of invoices
received, it establishes the types of invoice recorded:
complete, simplified, summary entry, customs document
and supporting accounting documents. Identification of
the invoice received as rectifying or replacing simplified
invoices is optional for the recipient. It also indicates which
of the transactions of tax importance that had previously
been notified via forms 347 or 340 need to be identified:
business premise leasing transactions, acquisitions of goods
or services outside of any business or professional activity
carried out by public bodies, purchases from travel agencies
that invoice according to AP 4 of the Regulations governing
invoicing obligations, and transactions with insurance
undertaking for which no invoice is issued. These last two
transactions shall be notified annually.
Additionally, Annex I to Order HFP/417/2017 includes the
record fields for which information should be provided,
pursuant to the implementing provisions thereof and the
provisions of Articles 63 to 66 of the RIVA. The format and
design of the informative messages to be sent shall be in
accordance with the fields set forth in Annex I and their format
and design shall be those recorded on the AEAT website.
Finally, with regard to the submission procedure, Order
HFP/417/2017 provides that this can be done by means of web
services based on the exchange of messages in XML format.
Each of these messages shall contain a maximum number
of invoicing records per submission. This maximum number
shall be defined on the AEAT website, and currently stands
at 10,000, although an unlimited number of submissions
may be made. In this case, submissions can only be made
with an electronic certificate.
Information may also be supplied using a web-based form.
In this case, the individual submission of invoicing records
shall be permitted, and submissions may be made with an
electronic certificate or, if applicable, the Clave PIN secure
access system (by a natural person who is the owner of the
same or their representative).
It should also be noted that RD 596/2016 establishes that
simplified invoices (issued or received) may be grouped
together, provided that certain requirements are met and
the invoicing record for the associated summary entry is
submitted.
Lastly, with regard to the content of the information to
be supplied, it should not be forgotten that the AEAT will
provide comparison information for invoicing records
submitted, making the information obtained from those
customers and suppliers using the SII system available
to taxpayers. Therefore, as noted above, the system will
provide a tool to assist in the preparation VAT returns and
payments.
Therefore, as is currently the case with Spanish personal
income tax (IRPF), the aim is to provide tax information so
that taxable persons may use this for filing their VAT self-
assessment returns. Taxable persons applying the SII system
shall receive tax information on the AEAT website and will
have one “declared” record book and another “comparative”
one, with the comparative information from third parties
belonging to the system or the AEAT database. As noted
above, in our opinion this is the main benefit of adopting
the SII system for the taxpayer.
6. Deadlines for electronic
submission of entries
Article 69 bis of the RIVA, the Sole AP and TP 4 of RD
596/2016 govern the deadlines for electronic submissions
in detail.
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The Immediate Supply of Information in value added tax
For invoices issued, the deadline is four calendar days from
the date of issue, except for those issued by the recipient or
by a third party, in which case the deadline is eight calendar
days. In both cases, these must be submitted before the 16th
of the month following that in which the taxable event arises.
For invoices received, the deadline is four calendar days
from the date of the accounting entry for the invoice or the
document upon which the amount paid is placed on record
by customs in the case of imports and, in any case, before
the 16th of the month following the settlement period in
which the transactions have been included.
With regard to certain intra-Community transactions
(the shipping or receipt of movable tangible property for
temporary use or for the writing of expert reports, repairs
or works thereon), the deadline is four calendar days from
the time of commencement of shipping or transport or, when
appropriate, from the moment of receipt of the goods.
With regard to transactions subject to the special cash
accounting scheme, the general deadlines shall be applied,
without prejudice to the fact that the information must be
submitted at the time of full or partial collection or payment
for the transactions. Record rectifications must be submitted
before the 16th of the month following the end of the return
period to which they relate. And, finally, as far as the register
of capital assets is concerned, all entries shall be submitted
by the submission deadline for the last settlement period.
It should be noted with regard to the deadlines for submitting
all entries, that Saturdays, Sundays and national bank
holidays are excluded. It should also be borne in mind that,
for the second half of 2017, the aforementioned four-day
deadline is extended to eight calendar days.
One should also remember that taxable persons applying
the SII system from 1 July 2017 shall have an obligation
to submit their invoicing records for the first half of 2017
before 1 January 2018.
Finally, a logical exception is contemplated to the supply
of information referring to the first half of 2017. This is for
taxable persons registered with the monthly repayment
register (REDEME). For them, the obligation to submit
invoicing records for the first half of 2017 shall be deemed
met, in that they have an obligation to submit the information
return referred to in Article 36 of the General Regulations
on Tax Management and Inspection (Reglamento General
de Gestión e Inspección Tributaria, RGGIT) during the period
from 1 January to 30 June 2017.
7. Modification of formal
obligations
With regard to the deadline for filing self-assessment returns
and making payments, Articles 61 ter.3 and 71.4 of the RIVA
state that, for businesses using the SII system, it is extended
until the first 30 calendar days of the month following the
monthly payment period, or until the last day of February in
the case of the assessment return/payment for the month
of January.
With regard to registration for the tax, Articles 9.3 q and
r, 10.2.h, p and q of the RGGIT incorporate the option of
keeping VAT records via the SII system and the option of
complying with the obligation to issue invoices through the
supplier or through a third party, as well as the revocation
thereof, amongst the reasons for submitting form 036 for
registration, modification and de-registration in the Register
of Businesses, Professionals and Withholders.
Additionally, as noted above, certain formal obligations
have been abolished. Articles 32.f and 36.1 of the RGGIT
and TP 2 of RD 596/2016 release taxable persons applying
the SII system from filing certain informative returns: the
declaration of transactions with third parties (form 347),
from the period relating to 2017, and the informative return
with the content of records (form 340) for taxable persons
registered with the REDEME. This abolishment will affect
returns for information to be submitted after the period
for July 2017. Pursuant to the Explanatory Memorandum to
RD 596/2016, the annual VAT summary return (form 390)
should be added to these two returns.
With regard to the abolishment of the requirement to file
form 340, it should be noted that it remains a requirement
for taxable persons subject to the Canaries’ Indirect General
Tax ( impuesto general indirecto canario, IGIC), as the system
for keeping books via the AEAT website does not affect
them. Therefore, only taxable persons subject to the IGIC
recorded in the REDEME and governed in Articles 9 and 10
of the regulations for the management of taxes arising from
the Canaries’ economic and tax system, approved by Decree
268/2011, of 4 August, are obliged to submit an information
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return with the content of the records referred to in Article
49.1 of said Decree.
This abolishment of certain formal obligations is presented
in the preamble to RD 596/2016 as a substantial reduction
in the administrative burden. Specifically, it indicates that
the supply of information from records via the AEAT website
“will allow for a substantial reduction in the administrative
burden associated with the periodic supply of information
affecting these persons and undertakings”. Nevertheless,
in our opinion, it cannot be considered an advantage or
compensation for those subject to the SII system as, in
reality, it is the result of the implementation of the new
managem ent system, which ma kes it unnecessary to
duplicate the supply of information via the aforementioned
information returns. Furthermore, it seems paradoxical to
present the SII as a system that reduces administrative
burdens when it is clear that it, in fact, increases them to
a point that may be considered disproportionate for some.
Another modification to formal obligations introduced with
the implementation of the SII system is associated with
delays due to causes not attributable to the tax authorities.
Pursuant to the provisions of Article 104.j of the RGGIT, newly
added as constituting a breach of is a delay in the obligation
to keep VAT record books via the AEAT website. The delay
shall be calculated from the beginning of proceedings until
the date of submission or registration.
Additionally, a new provision is established with regard to
invoicing of transactions by recipients or by third parties.
Pursuant to Article 5.1 of RD 1619/2012 and TP 3 of RD
596/2016, persons and undertakings applying the SII
system and that have opted to comply with the obligation
for the issuing of invoices by the recipient or a third party
must notify by means of the tax registration form (form
036) said option, the date from which they are exercising it
and, where appropriate, its renouncement and the effective
date. This notification can be provided from June 2017
onwards.
Lastly, with regard to the deadline for forwarding invoices,
as established in Article 18 of RD 1619/2012 and FP 2 of RD
596/2016, from 1 January 2017 onwards, should the recipient
of the transactions be a business or professional, the invoice
must be forwarded before the 16th of the month following
that in which the taxable event arises.
8. Penalties
As noted above, Law 34/2015, of 21 September, modifying the
General Tax Law, has amended Article 200, with effect from
1 January 2017, to classify a delay in the duty to keep and
supply records via the AEAT website as a tax infringement.
Specifically, a new letter “g” has been added to Article 200.1
of the LGT, which provides that a tax infringement is caused
by “delay in the obligation to keep records via the State Tax
Administration Agency website through the submission of
invoicing records by the deadlines established in regulations”.
Additionally, a new paragraph is added to Article 200.3 of
the LGT, which establishes that “delay in the obligation to
keep record books via the State Tax Administration Agency
website through the submission of invoicing records by the
deadlines established in regulations shall be punished with
a proportional pecuniary fine of 0.5 per cent of the amount
of the unrecorded invoice, with a minimum quarterly amount
of 300 euros and a maximum of 6,000 euros”.
One author has rightly noted several issues raised by this
new type of infringement and its associated penalty.
3
On
the one hand, the class of infringement has given rise to
the new wording of Ar ticle 29.3 of the LGT, establishing the
possibility of governing by regulatory norm the obligation
of keeping records by electronic means. However, it does
not refer to the fact that they must be kept via the AEAT
website, as stated by regulatory norm. This may, therefore,
give rise to problems of legality, due to the configuration of
a class of infringement by reference to a regulatory norm.
On the other hand, Article 200.1.g of the LGT makes
reference exclusively to the “obligation” of keeping record
books via the AEAT website, which thus raises doubts as to
whether the violation can be committed by those who have
voluntarily opted into the SII system.
Furthermore, said Article 200.1.g of the LGT makes no
distinction on the basis of the length of the delay in providing
3. See the detailed comments made in this regard by Longás Lafuente (2017b, p. 92-93).
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The Immediate Supply of Information in value added tax
the information, such that one day’s delay will be enough
for the infringement to have been deemed committed.
This asks a great deal of businesses and professionals
subject to the SII system, with regard to formal rather than
substantive obligations, and could be regarded as somewhat
disproportionate.
Another related controversial matter is the degree of
inconsistency between the infringement class, which
refers to the keeping of record books, whilst the penalty
involves the levying of a fine for each invoice that should be
recorded. In this regard, it should not be forgotten that there
are entries in the records that are not based on invoices,
such as the record of capital assets or that of certain intra-
Community transactions.
Lastly, Article 200.3 of the LGT makes reference to a
quarterly minimum, which raises doubts as to whether the
infringements shall be committed as a result of quarterly
infringement of the obligation. Therefore, it could be
asked what period is to be borne in mind for classifying
infringing conduct, particularly considering that businesses
or professionals under the SII system have the obligation
to file monthly self-assessment returns.
9. Conclusions
The SII system represents a significant step in tax-related
e-government and a significant increase in the use of
information technologies in interactions between the tax
authorities and taxpayers. This new management system
entails the keeping of record books via the AEAT website,
by means of the virtually immediate submission of invoicing
records. Taxpayers must forward invoice details to the tax
authorities via the Internet, and, almost in real time, this
information updates the tax records.
It is important to note that the SII system does not involve
sending the actual invoice to the AEAT, but rather specific
information contain ed therein. In this regard, it is worth
highlighting that the SII is not designed as a new formal
obligation, but rather a new system for putting into effect
an already existing one, that of keeping VAT records.
Although the introduction of this system is intended to
enhance the support available for taxpayers, by providing
them, initially, with a range of tax data and, subsequently,
with a draft tax return, it should not be forgotten that its
main objective is one of tax control. It is clear that the aim of
the obligation to supply immediate information to the AEAT
is to allow the tax authorities to more exhaustively monitor
the truthfulness of the self-assessment returns filed, so as
to be able to prevent or reduce tax fraud.
However, the implementation of this new tax management
system represents a clear increase in the administrative
burden on businesses and professionals under the SII
system. Furthermore, the penalty system established is very
strict with regard to compliance with formal rather than
substantive obligations. All of this may give rise to doubts
relating to compliance with the principle of proportionality.
Furthermore, this increase in the administrative burden
for businesses and professionals could work against the
necessary simplification and reduction of formal duties,
which already represent, with regard to this tax, a great
effort, both financially and in terms of the dedication of
human resources.
References
CASANA MERINO, F. (2015). Manual de Procedimientos Tributarios. Madrid: Iustel.
GASCÓN ORIVE, A. (2016). IVA Práctico. Madrid: Centro de Estudios Financieros.
LONGÁS LAFUENTE, A. (2017a). “Suministro Inmediato de Información en la gestión de los libros del
IVA (I)”. Revista de Contabilidad y Tributación. Vol. 408, p. 45-92.
LONGÁS LAFUENTE, A. (2017b). “Suministro Inmediato de Información en la gestión de los libros del
IVA (II)”. Revista de Contabilidad y Tributación. Vol. 409, p. 45-100.
MERINO JARA, I. [et al.] (2014). Procedimientos Tributarios: Aspectos prácticos. Barcelona: Bosch
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The Immediate Supply of Information in value added tax
Ana María Delgado García and Rafael Oliver Cuello
Recommended citation
DELGADO GARCÍA, Ana María; OLIVER CUELLO, Rafael (2017). “The Immediate Supply of Information in
value added tax”. IDP. Revista de Internet, Derecho y Política. No. 25, pp. 83-93. UOC [Accessed:
dd/mm/yy]
<http://dx.doi.org/10.7238/idp.v0i25.3113>
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About the authors
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
<http://www.uoc.edu/webs/adelgadoga/EN/curriculum/>
UOC
Av. Carl Friedrich Gauss, 5
08860 Castelldefe
Rafael Oliver Cuello
prof.roliver@eserp.com
Full Professor of Law
ESERP Business School
<https://es.eserp.com/profesor/rafael-oliver-cuello/>
ESERP Business School
c/ Girona, 24
08010 Barcelona