JANUARY 2022
The First Chamber of the Court of Justice of the European Union (EUCJ) has issued a judgment declaring illegal tax Form 720 for restricting free movement of capital by imposing on Spanish residents an obligation to declare assets abroad that does not have its equivalent with respect to assets or rights located in Spain. The purpose of guaranteeing the effectiveness of tax controls to combat tax fraud and evasion has not been considered sufficient motivation to justify this difference in treatment.
Form720 obliges Spanish residents to report assets and rights located abroad since 2012. For tax residents that failed to submit the form, completed it incorrectly, or late, the Spanish regulation imposed severe sanctions.
The EUCJ declares that Spain fails to comply with EU regulations:
- by providing that non-compliance, complete, incomplete or late submission of the information obligation disclosing goods and rights held abroad (Form 720) has as a consequence the taxation of undeclared income corresponding to the value of those assets without the possibility of relying on statue limitation (Art. 39.2 Income Tax Law and 121.6 Corporate Tax Law);
- When sanctioning non-compliance, complete, incomplete, or late submission of Form 720 with a proportional fine of 150% of the tax payable on the value of said goods, which can be accumulated in addition to the fixed fines (DA18 General Tax Law), and
- when sanctioning non-compliance, complete, incomplete, or late submission of Form 720 with fixed fines that are not proportional to sanctions provided for similar offenses in a purely national context and which total amount is not limited (DA 18 General Tax Law).
This has the effect of annulling these provisions and considering illegal the obligation as a whole for being contrary to EU Law.
All those taxpayers who have ongoing proceedings against sanctions imposed because of tax form 720 have been struck lucky because the Spanish Courts are bound by European justice in this regard.
The Government will now have to, finally, reform the law to adapt this obligation to EU requirements, which will undoubtedly imply an adaptation of the sanctioning regime to equate it with other obligations of a formal nature.
In conclusion, the obligation to declare goods and rights abroad (submitting tax form 720) continues in force, although its sanctioning regime is no longer applicable. The Government has already announced a reform before April 2022, so it seems unlikely that the obligation to submit form 720 will be removed.
If you have questions regarding how this judgment may affect you, do not hesitate to contact us.
Pitu Domecq
Socia – Tax
idp@uhy-fay.com
RELATED SERVICES:
– Tax advisory
– International Tax
