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Tax litigiousness: Alternative means for dispute resolution and facilitation measures

Work on this project was carried out over an extended period of time, consistent with the intention to search for pragmatic solutions enabling effective implementation, which characterised its approach.

For this reason, following an initial approximation to the issues analysed by each of the authors of the chapters of the book, a series of seminars were held to share the first draft and proposals on each matter under review.  Namely:

  • Non-availability of the tax credit.
  • Mediation solutions in tax procedures.
  • Implementation of a second opportunity for  “agreed assessment”, through economic -administrative channels.
  • Promotion of the effectiveness of out-of-court tax resolutions  – through contentious-administrative channels -.
  •  Facilitation measures in tax litigation. “Appeal per saltum”

These Seminars were attended by the representatives of various public and private institutions – the relevant social partners in tax. Their opinions which were expressed in in the debates which took place in each seminar, helped to complete and improve the initial proposals of the authors of the book. 

The engagement of professionals associated with the different institutions does not evidently mean that they back the solutions proposed in the work published by Fundación Impuestos y Competitividad. However, their involvement was of considerable interest and contributed to improving the final work, which is why they deserve a special mention and a more detailed acknowledgement in the note on “justification for the project, authorship and collaboration” of the book which we now present on this website.

Regarding the book’s content, noteworthy is the conceptual relevance of the first chapter, which provides an in-depth review of the unquestionable limitation that prevailing legislation, the General Tax Law and General Budgeting Law, imposes on the full introduction of new tax dispute resolution measures. The final conclusion of the deep analysis performed in this respect is that the non-availability of the tax credit is not “ontological”, but rather it is simply an option of the system, which is established under “ordinary law”, and which may therefore be modified through that same channel. In keeping with the above, a new proposed wording of Article 18 of the General Tax Law is included. 

Subsequent chapters, namely chapters II to IV,  address alternative dispute resolution formulas in successive phases of tax litigation. Chapter II looks at including mediation before the issue of the administrative decision and considers that possibility applicable to all tax procedures, paying special attention to inspection, limited review and collection  procedures; with respect to the mediator, the role may be assigned to functionaries of the Tax Administration who should be members of a body created ad hoc, such as a possible National Mediation Office, although in the long run it is considered advisable to extend that role to include other professionals. This chapter also includes specific proposals for essential legislative amendments in order to introduce this solution.

Chapter III “re-invents” the solution of agreed assessments as an institution, which, after an initial phase where its application has been limited, has gradually consolidated its position, leading to a second possibility of agreement, based on the same conceptual principles of Article 155 LGT through economic-administrative channels.  The analysis includes a detailed proposal for amending several legal and regulatory provisions of which what would be a new wording is provided. In addition, it is considered that this formula may be extended to litigations resulting from inspection procedures as well as other kinds of procedures, with the suggestion to create an ad hoc or specialist  administrative body  in order to conduct the new review, facilitating the application of the “agreement” albeit without modifying the authority of the body that should issue the measure.

Chapter IV does not initially aim to promote a radical change in the current regulation of the contentious – administrative procedure but rather to give effect to the “compromise  agreement” solution envisaged in Article 77 of the LJCA in effect.

Nonetheless, this effective impetus should bring about indisputable legislative change, in favour of which the chapter analyses the limited pronouncements of the Council of State for arbitration solutions in light of Article 7.3 of the LGP, the numerous proposals of doctrine or the Fundación Valsaín or the impact of various domestic regulations and European Union recommendations or Directives which advocate for the introduction of new resolution mechanisms. The basic  point of focus of the analysis is, nonetheless, that devoted to the proposals of the CGPJ in their “Practical Guide to intra -judicial mediation” (2016) and particularly, the so-called “Emergency plan for the Judiciary following the State of Emergency” (May 2020), which, alongside intra-judicial reconciliation,  upholds a new out-of-court mediation which the authors consider the  most appropriate channel for steering this alternative solution through legal proceedings.

The last chapter of the book analyses some “minor” procedural changes whose introduction should facilitate the processing of tax litigations through contentious proceedings, as well as the recovery of the institution of the “extension of the effects” of judgement.  For the most part, it considers that such facilitation through the standardisation of the interpretative criteria advises strengthening the binding nature of the Supreme Court’s decisions, clarifying that in order to do so, there is no need to reiterate the resolutions issued in this same vein. 

This set of proposals is complemented with the proposed introduction via legislation of the per saltum appeal as an arrangement aimed at swiftly obtaining an interpretative decision of the Supreme Court on innovative disputes when the  dispute results from the unlawfulness of a rule, its possible unconstitutionality, or the breach of its European law.  This solution is the legislative extension and reflection of the criterion which the Supreme Court has partly upheld in recent jurisprudence. This set of proposals for improving the current system is based on the strong conviction that, as is set forth in the book’s prologue, written by Uría Menéndez as the project coordinator- to whom overall authorship is attributed-  and as provided in Article 6 of the European Chart of Human Rights, among elements of the right to “fair proceedings”, is the right to “the timely resolution of disputes”.  Since 2001 there have been recommendations in this respect from the Council of the European Union  on the introduction of alternatives to resolve disputes between the Administration and “private parties” and their appropriateness has subsequently been reiterated on several occasions, it being possible to assume that “developing alternative means … to resolve  disputes in order to fairly and swiftly deliver justice, is part of the will of Europe to strengthen democracy, good governance and the rule of law”.  Regrettably it may be verified that when it comes to tax litigation, Spain has after all this time failed to adopt the necessary measures in this regard.