Registration under wrong heading: permanent or situational breach?
11/01/2022 Uría Menéndez (uria.com)
Registering under the wrong Business Activities Tax heading affects all subsequent periodic tax returns, but do penalties apply when the error was made in a statute-barred year?
The tax inspectorate interpreted that they do, because it considered registration under the wrong heading to be a permanent breach (infracción permanente). We argued that incorrect registration is a situational breach (infracción de estado) rather than a permanent breach. In permanent breaches the action persists over time. In situational breaches, the breach occurs at a specific point in time and does not project forward, although its effects do. Therefore, the special rule set out in article 30.2 of the Law Regulating the Public Sector for permanent breaches (according to which, the limitation period starts when the infringing conduct ends) does not apply to the latter. In our view, the limitation period begins when the action was carried out, despite the fact its effects continue (Supreme Court decisions of 23.10.2015, 16.3.2010, 16.3.2003 and 10.4.1997).
Our grounds were accepted. The registration under the incorrect heading was held to be a situational breach and the fine for unpaid tax in subsequent tax returns was statute-barred and therefore annulled.