Equality before the law? Attributing secondary tax liability among several taxpayers
09/12/2021 Uría Menéndez (uria.com)
According to reports published by the Spanish Tax Agency (STA), from 2018 to 2019 proceedings to attribute secondary tax liability increased by 119.3%. The guidelines on the 2021 Annual Tax and Customs Control Plan rightly described this mechanism as one of the tools that has proven most effective for collecting taxes.
One might wonder whether this is due simply to the increase in use of this tool or whether there are other factors at play, such as the lack of restrictions (in law and in practice) on its use which, in our humble opinion, can create situations that verge on the absurd.
An example of this is the case of an insolvency administrator of Company A, who was declared jointly and severally liable for the latter’s tax debt for authorising certain payments to Company B for services that the STA considered did not exist. On the same day that Company A’s insolvency administrator was declared liable, the STA acknowledged, in relation to an application to attribute tax liability to the director of Company B, that the services were real. And there lies the problem. The same tax authority considered the same services on the same day, yet concluded that they were real for the company that provided them but not for the company that received and paid for them.
This case reminds me of a scene in “Luces de bohemia” in which Max tells don Latino that “deformation ceases to be deformation when it is subject to perfect mathematics. My current aesthetic is to transform classic rules with the concave mirror of mathematics”.
Perhaps the “transformation” of such a classic principle as equality before the law would be avoided in these cases if tax proceedings initiated against different taxpayers who are all involved in the same transaction giving rise to a single tax obligation were unified or, at the very least, coordinated to some degree.