Operations carried out in prescribed fiscal years prior to the 2003 general tax law cannot be checked, even if they have effects in non-prescribed fiscal years

In June 2014, verification and investigation proceedings were initiated for Tax Group X, regarding to corporate income tax, under the consolidated taxation regime, for the years 2009 to 2012.

However, it should be remembered that the law applicable in 2002, the former General Taxation Law (“LGT”) of 1963, did not typify the case of conflict in the application of the tax rule, as it does at present in its article 15.

Because of the verification and investigation activities, a settlement agreement was issued for a total amount of € 2,338,356, and the taxable income for the years 2009, 2010 and 2011 was increased.

The Company filed an economic-administrative claim against the aforementioned settlement agreement, alleging, among other reasons, that the tax authorities cannot declare transactions carried out in periods affected by the statute of limitations to have been carried out in fraud of law or in conflict with the application of the law. Likewise, the claimant argues that it is not possible to declare in fraud of law the legal acts or transactions carried out in 2002, when the General Taxation Law 58/2003 was not yet in force and, therefore, the conflict in the application of the law had not yet been typified.

For these purposes, it is important to bear in mind that this issue has already been resolved by the Spanish Supreme Court, which has established the doctrine that the reference date for determining the legal regime applicable to the tax authorities’ power of verification on prescribed fiscal years is not the date of the verification or inspection actions but the date on which the acts, operations and circumstances being verified took place.

Thus, since the 1963 LGT is applicable in 2002, the tax authorities cannot check the acts, transactions and circumstances that took place in that year, which is prior to the entry into force of the 2003 LGT, even though it extends its effects to non-prescribed years. Consequently, neither can it regularize such acts based on an article that is not applicable in the fiscal year in which the facts occurred.