Tax Offences of Risk Creation and the Principle of Proportionality

Eduardo González Fernández.

15/09/2022 Uría Menéndez (uria.com)


“Tax offences of risk creation” (infracciones de peligro) do not relate to economic damage that has already been caused to the Treasury, but rather preparatory acts that could give rise to economic damage. Examples include improperly assigning positive or negative amounts or apparent tax credits to a taxpayer, which is classified as a tax offence under article 195 of the General Tax Law. This offence concerns the risk created by improperly accrediting negative amounts that could be applied in future years and therefore punishes a future reduction in tax revenue, which may never actually materialise.

In these cases the infringement automatically occurs when the risk is created, regardless of whether or not the non-payment of tax actually occurs in the future. But is it reasonable, considering the purpose of the rule and the principle of proportionality, that this conduct be punished if the taxpayer makes the risk in question disappear, even if that is achieved other than by filing supplementary self-assessments?

If the principle of proportionality requires the tax authorities to not only adapt the sanction to the seriousness of the facts, but also consider the appropriateness and necessity of the sanction in light of the specific circumstances of the case and particularly in light of “the nature of the damage caused” (article 29 of the Law 40/2015, of 1 of October, of Regime Legal of the Public Sector), then that raises the question of whether it is truly appropriate and necessary to punish the creation of a risk that ceases to exist because of a spontaneous action taken by the taxpayer who is to be punished.

It should be recalled that in criminal law offences of risk creation are classified as punishable attempts (tentativas punibles) and if the offence is not ultimately consummated for reasons attributable to the perpetrator, then that is considered an exonerating circumstance. If that is so in criminal law, and the principles applicable in criminal law can be extrapolated to other areas of punitive law, is it not disproportionate that in tax law the penalty for an offence of risk creation in which the risk disappears is still considered appropriate and necessary, when in criminal law the result being avoided means that there is no liability? In our opinion, it is indeed disproportionate. The courts have to date (see National Court judgment of 8 July 2021, rec. 541/2018, and High Court of Galicia judgment of 21 October 2010, rec. 16228/2008) not taken this view... perhaps because the principle of proportionality has not been given the attention it deserves when applying tax sanctions.

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