The Supreme Court lays down the costs in the tax procedures created by the Montoro Treasury for considering them a "rate" or "sanction".

The ruling contains harsh criticism of the Treasury for creating "legal uncertainty."

The Supreme Court has annulled the costs in tax proceedings, so that lawsuits with the Treasury will be free from now on. This has been established by the Supreme Court (TS) in a ruling that agrees with the Spanish Association of Tax Advisors (Aedaf) and annuls article 51.2 of Royal Decree 1073/2017, which approved the Cristóbal Montoro Treasury on December 29 of 2017. It is striking that the ruling contains very harsh statements with the Treasury and with the legislator for not respecting the principle of legal certainty

The judgment concludes that the current cost model was similar to a "rate" or "sanction" and therefore determines its inadmissibility.

The Supreme Court does not dispute the inadmissibility of the costs themselves, which in any case could be the subject of a question of constitutionality, and considers that the value of Aedaf's allegations regarding their inadmissibility in a general sense "is that of mere opinion, legitimate from then but without legal force. However, it concludes that the cost model devised by Montoro is null because it supposes a generic system, "detached from the procedure", so that instead of a procedural cost it becomes a "fee" or "sanction".

The Treasury quantified them as a percentage of 2% of the amount of the claim, with a minimum of 150 euros for claims or appeals resolved by a single person and 500 euros for those resolved by a collegiate body. In the event of claims for an indeterminate amount, the costs will be quantified in the minimum amounts referred to. These amounts could be updated by Ministerial Order.
There was no administrative appeal against the order to pay costs, without prejudice to its review together with the appeal that could be filed.

The General Tax Law establishes that the economic-administrative procedure will be free, but that costs may be regulated for the cases that the economic-administrative court deems appropriate.

The appellant argued that the regulation of these coasts should be done by law, since it exceeds the limits of a Royal Decree. He stressed that the procedure is directed and resolved by the Treasury itself, that it is mandatory to access the judicial route and that these costs cannot be challenged, unlike the judicial ones. It considered that setting minimum thresholds and not maximum thresholds was dissuasive and disproportionate.

For the State Advocacy, the costs are a benefit to be paid for the misuse of the tax procedure.

The Supreme is called "powerfully by the attention", and "puts on notice" that the bulk of the controversy between the parties is focused on discovering the legal nature that hides the legal concept of "the costs". They discuss whether it is a fee, a sanctioning measure, a non-tax public patrimonial benefit, and even a surcharge; which he thinks is "superfluous." «The costs of the procedure -without prejudice to the fact that its regulatory configuration contains one or the other elements within the set of expenses, which in this case seems especially convenient to identify, since it is based on the assumption that the economic-administrative procedure is free -, are just that, costs of the procedure, neither fees, nor sanctioning measures, nor patrimonial benefits of a public non-tax nature, "he says.

It happens, however, the judgment understands that the contested article, "as long as it quantifies the amount in a general and abstract way, separating it from the specific procedure in which the expenses to be covered are produced and disregarding these, while it is disconnected from the costs of the specific procedure, makes it lose its true nature, since we can no longer be talking about costs of the procedure, but […] they can be identified as a fee, as a sanctioning measure or as a non-tax public patrimonial benefit, and if it is one of These figures, what is evident is that they cannot be costs of the procedure ».

The sentence concludes that the contested article "comes to deny the costs of the procedure their status as such, and advocates that they be considered a patrimonial benefit of a public non-tax nature." Which leads him to cancel them.

The Treasury could re-regulate these coasts by Law

The ball remains on the roof of the Treasury, which can regulate these coasts again. Esaú Alarcón, a lawyer member of Aedaf who has directed the appeal, points out that the Supreme Court states here that this development in any case cannot be done through a decree but in a law.

The sentence that annuls the costs in the tax procedure contains numerous warnings from the Supreme Court about the legal uncertainty that it detects in the tax laws, with harsh criticism of the Treasury and the legislator.
The High Court emphasizes that legal certainty is one of the basic principles of the legal system, for which it relies on judgments of the Constitutional Court that define it as "the sum of certainty and legality, hierarchy and normative publicity, non-retroactivity of what is unfavorable, prohibition of arbitrariness", and which implies that the legislator "must pursue clarity and not regulatory confusion [...] that citizens know what to expect".

The Supreme Court warns of a "profound legal uncertainty" in the tax field.

The High Court emphasizes that it wants to raise these reflections before analyzing Aedaf's claim to annul the costs, since it believes it pertinent to warn that "it is common to feel the profound legal uncertainty and social uncertainty caused, among other factors, by the imprecision of the legal rules. This is manifested in a very significant way in the fiscal sphere”.

It warns that "it is possible to observe in the normative elaboration, with habituality, the use of concepts and categories perfectly defined and delimited by tax legal science, which in its development in the normative text delimit contours that move away from the concept or category enunciated to finish defining or showing a different fiscal figure”. Sometimes, he says, "it seems that said technique responds to mere gaps or to the conceptual complexities of a certain tax figure, others, however, discover a purpose directly aimed at overcoming obstacles that would make its application unfeasible." Thus, "what constitutes true rates are presented as taxes or vice versa, one plays with direct or indirect taxation, or with extra-fiscal taxes."

For the Supreme Court, in short, the "immediate certainty" in the development of the rules "is not a desideratum but a legal requirement directly connected to the principle of legal certainty and non-compliance with which must entail the legal consequences that the legal system reserves for bankruptcies constitutional".

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