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NEWS AND AGENDA

New monography on the Basque Economic Agreement and the connection points

The Basque Public Administration Institute (IVAP) has published a new monography in the European Inklings (EUi) collection, issue 18, that delves furthers into the connection points envisaged in the Economic Agreement to establish the levying, inspection and legislation applicable to the agreed taxes. The new monograph includes, on the one hand, seven articles considering further general aspects of the connection points, such as residency or domicile for tax purposes, the permanent establishment concept or the problems arising from the application of the agreements to avoid double taxation. On the other hand, it considers and develops key issues that affect the applicable connection points in direct taxation or in indirect taxation.

On the other hand, the 2019 Issue 2 of Nueva Fiscalidad includes articles written by José Damián Iranzo Cerezo (Judge in the Chamber for Contentious Administrative Proceedings at the High Court of Justice of the Basque Country) and by Antonio Vázquez del Rey Villanueva (Senior Professor of Tax and Financial Law at the University of Navarra), in which the effects of Constitutional Court Ruling 9/2019, of 17 January, regarding the retroactivity of the effects of the tax agreement are analysed in analysed in the first of the articles. The second considers the content of the Supreme Court ruling on 28 February 2019, which proceeds to a radically different assessment of the indicative elements existing in the proceedings than the one initially performed by the Arbitration Board.

European Inklings Index

Doctrine of the Authors

The Basque Economic Agreement at the University of Nevada, Reno

Since 2014, the William A. Douglass Center for Basque Studies at the University of Nevada introduced a new knowledge field into its activities: economic and legal studies, with emphasis on the financial-economic framework of self-government, particularly with regard to the Basque public financing and tax system. The successful 13th Annual Conference "Fiscal Systems and the Crisis" was the starting shot of this new adventure.

As for Bizkaiko Foru Aldundia- Diputación Foral de Bizkaia, the Provincial Government included the promotion and dissemination of international research about the Basque Economic Agreement and comparable federal fiscal systems as a target in its strategic plan of government Bizkaia Goazen 2030. In particular, the Provincial Government of Bizkaia seeks to raise awareness about the Basque tax system by means of international outreach and also to move forward in the understanding of the structural relations between the system of the Basque Economic Agreement and the other federal models existing in the United States of America and worldwide.

With the aim of achieving their common goals, the signing of a Collaboration Agreement between UNR and the Government of Bizkaia in 2014 was a remarkable milestone. Pursuant to said agreement, two experts in taxation from the Provincial Government of Bizkaia were seconded for one term in 2015 and in 2016 for the purpose of carrying out research work into comparable federal systems and to showcase the Basque Economic Agreement. The positive outcome of the two-year Collaboration Agreement led to the signing in 2016 of a new Collaboration Agreement, which expires in 2019, pursuant to which another two governmental experts were carrying out research work for a term in 2017 and 2018.

Under the framework of the Agreement, the CBS, with the financial support of the Provincial Government of Bizkaia, will organize on April 3 and 4, 2019, a Symposium on Basque Fiscal Systems, within which said Basque public officials will offer the results of their research conducted at the CBS. As to enrich the Symposium, distinguished scholars from the University of the Basque Country (UPV/EHU) and from Deusto University in Bilbao will be also invited to offer their views on the topic from different perspectives. Basque Country, USA, Switzerland, Australia or Canada will be some of the tax federal systems tackled by the speakers.

The Symposium is bound to offer a meeting point for the tax practitioners in the Basque institutions and the international academia and welcomes students and professors at University of Nevada, Reno with an interest in decentralization and tax policies from a worldwide perspective.

https://basquetax.blogs.unr.edu/

 Agenda

Constitutional Court confirms constitutionality of tax on electricity production and Supreme Court interprets ROVER doctrine

In a ruling dated 17 January the Constitutional Court has confirmed the legality of Provincial Regulation 24/2014 of 9 July of the General Assembly of Álava on the tax on electricity production, with effects dating back to 1 January 2013, the date of the entry into force of the tax in the body of law of Spain.

The Court argues that the said provincial regulation is a response to the need for adaptation that results from Additional Provision Two of the Economic Agreement, with the time required for that adaptation to be put into effect by mutual accord between the central government and the regional autonomous community in order to include in it new taxes created by the central government through the relevant arrangements.

What the court considered a true case of back-dating is therefore only a consequence with a view to permitting the effective incorporation of the tax on the value of electricity production into provincial tax systems, determining the date of effect of the arrangements for the tax. It is not therefore, according to the Court, a problem of back-dating the tax on the value of electricity production, a tax that was already in existence, having been created by Act 15/2012 of the central government, but rather of back-dating the effects of the arrangements made for it to be integrated into the tax system of each respective historical territory and make it possible for the provincial councils to levy, manage, settle, collect and inspect it.

For its part the Supreme Court ruled on 31 January last to apply its doctrine as ruled in the ROVER case to a case in which the Board of Arbitration of the Economic Accord of Navarre had upheld the criteria applied by the Provincial Treasury Department.

In line with its previous rulings, the Court states that even though the corporate headquarters of the company is in Navarre and the industrial workshop where the personnel and materials used to direct the business are also located there, the fact that the operations of the company to acquire pigs (in the common territory or within the province), prepare them and transport to the place designated by the purchaser (be it in common territory, within the province or outside Spain) cannot be considered as irrelevant or merely ancillary.

These operations – other than the management functions centralised in the province – clearly also generate added value, as the operations performed elsewhere (be it in Navarre or in common territory) include such important tasks as receipt of goods, loading, unloading, storage, transportation from and to the relevant location and delivery to designated abattoirs can certainly not be classed as accessory or irrelevant.

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Final instalments of the series on the Economic Agreement

Issues 248, 249 and 250 of Forum Fiscal contain the last three of the fifteen instalments in which Javier Armentia Basterra has examined in depth the contents of the Economic Agreement, in terms of taxation, financial relations and the bodies envisaged for those relations. This completes exhaustive efforts to document and analyse our own particular system of fiscal and financial self-government, and provides scholars with an essential instrument for understanding and disseminating it.

Moreover, issue nº 2 for 2018 of the discussion papers of the RIFDE (Network of Researchers in Regional Financing and Financial Decentralisation in Spain) contains a study by J. Agustín Manzano Silva that analyses the consequences of the agreements reached concerning the tax quota for the Basque Country and the contribution of Navarre for the Regional Autonomous Communities that operate under the common framework.

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Seminar on the Economic Agreement in Europe on 25 March

On 25th March next the Centre for Documentation and Research on the Economic Agreement and the Provincial Treasuries, in cooperation with the Department of Contemporary History and the Department of Financial and Tax Law of the University of the Basque Country, is to hold a seminar under the title "Multi-tier fiscal governance in the European Union: the case of the Basque provincial treasuries".

The event will be opened by José María Iruarrizaga, Provincial Councillor for the Treasury in Bizkaia and Joseba Agirreazkuenaga, Professor of Contemporary History and director of the centre.

Addresses by various specialists will be followed by the presentation by the Association for the Promotion and Dissemination of the Economic Agreement of a new line of publications from Ad Concordiam, beginning with a study by Andoni Montes, a pre-doctoral researcher at the Complutense Institute for International Studies, under the title "Basque provincial autonomy and integration into Europe in the field of corporation tax".

The seminar will end with a debate among all the speakers.

Programme for the seminar

The series “All about The Economic Agreement” continues

Forum Fiscal continues its series on the Economic Agreement by Javier Armentia Basterra. Instalments XI and XII are included with Issues 246 and 247 of the journal. Iñaki Alonso Arce discusses the creation of new taxes by the Spanish parliament and the implications for the Basque provinces.

Issue 193 of the Revista Española de Derecho Administrativo (Spanish Journal of Administrative Law) includes a piece by José Damian Iranzo Cerezo, magistrate from the contentious-administrative division of the Basque High Court, on the consequences of the latest Constitutional Court judgements for the so-called "armour plating" of provincial legislation.

In the December issue of the journal Exparlamentarios, Juan José Laborda Martín, former speaker of the Senate, and Ignacio Zubiri Oria, Professor of Public Finance at the University of the Basque Country, discuss the significance of the Economic Agreement as a historical entitlement of the territories of Navarra and the Basque Country and analyse the quota system and its consequences.

Finally, Rafael Fernández Valverde, magistrate of Court Three of the Supreme Court, discusses the court's judgement of 5 September 2018, ruling that the provincial governments cannot be held liable for the recovery and return by affected companies, of aid awarded in the form of tax benefits, and subsequently ruled to be unlawful state aid by the European Commission. This judgement confirms the decision of the Basque High Court, in its judgement of 22 November 2016.

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The series "All about The Economic Agreement" continues

Forum Fiscal continues its series on the Economic Agreement by Javier Armentia Basterra. Instalments XI and XII are included with Issues 246 and 247 of the journal. Iñaki Alonso Arce discusses the creation of new taxes by the Spanish parliament and the implications for the Basque provinces.

Issue 193 of the Revista Española de Derecho Administrativo (Spanish Journal of Administrative Law) includes a piece by José Damian Iranzo Cerezo, magistrate from the contentious-administrative division of the Basque High Court, on the consequences of the latest Constitutional Court judgements for the so-called "armour plating" of provincial legislation.

In the December issue of the journal Exparlamentarios, Juan José Laborda Martín, former speaker of the Senate, and Ignacio Zubiri Oria, Professor of Public Finance at the University of the Basque Country, discuss the significance of the Economic Agreement as a historical entitlement of the territories of Navarra and the Basque Country and analyse the quota system and its consequences.

Finally, Rafael Fernández Valverde, magistrate of Court Three of the Supreme Court, discusses the court's judgement of 5 September 2018, ruling that the provincial governments cannot be held liable for the recovery and return by affected companies, of aid awarded in the form of tax benefits, and subsequently ruled to be unlawful state aid by the European Commission. This judgement confirms the decision of the Basque High Court, in its judgement of 22 November 2016.

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New vacancy on the Economic Agreement's Arbitration Board

Isaac Merino Jara, Professor of Tax Law has presented his resignation as a member of the Arbitration Board of the Economic Agreement, on which he has sat for the last decade. The move follows his appointment to the position of Supreme Court magistrate (Court Three), on the recommendation of the General Council for the Judiciary—a post filled by distinguished lawyers and jurists. Prof. Merino's resignation once again leaves the Arbitration Board inoperative, at a time when it has a considerable number of cases awaiting resolution.

In recent judgements, the board has resolved a number of issues that have proved controversial in recent years, such as the reporting point for withholdings on earnings for work performed on board ships (Judgement 6/2018), treatment of advance payments for the purposes of determining the trading volume in Company Tax (Judgement 9/2018) and the determination of regulations applying to business restructuring operations involving organisations subject to the legislation of different administrations (Judgement 16/2018). It has also confirmed other rulings, such as the location for VAT purposes of fuel deliveries supplied via credit cards (Judgement 7/2018).

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Seminar on the Economic Agreement at the University of the Basque Country

On 21 and 29 November two seminars took place at the Centro Carlos de Santamaría venue in Donostia-San Sebastián under the leadership of professors Isaac Merino Jara and Juan Ignacio Ugartemendia Eceizabarrena which looked in depth at the points of connection envisaged in the Economic Agreement for the allocation of regulatory authority for the levying of taxes and tax inspections between the central government and the Basque provincial authorities. The speakers on the first morning were representatives of the various tax authorities in the Basque Country, while those at the rest of the seminars were academics from the University of the Basque Country and several other Spanish universities.

Programme of the seminars

Administrative doctrine

The Tax Coordination Body of the Basque Country has issued two consultations in which, on the one hand, it analysed the application of the tax benefits provided for in the common regional regulations on patronage in favour of a provincial cultural foundation, also qualified as a priority activity, and, on the other, it clarified the application of the First Transitional Provision of the Economic Agreement, after raising the threshold for taxation on volume of transactions to 10 million euros and its application to tax periods or settlement periods which have begun since the entry into force of Law 10/2017, notwithstanding the omission from that provision of any reference to Article 27 relating to the levying of VAT.

The Arbitration Board of the Economic Agreement has resolved four arbitration disputes through its Resolutions 1 to 4 of 2018. In the first of these (Resolution no. 1/2018), it confirmed its previous doctrine in relation to determining the dies a quo for calculating the statutory filing period in cases of discrepancies prior to the effective constitution of the Board, referring to the date of this constitution to do so. The second (Resolution no. 2/2018) denies the application of the Rover Doctrine to a case in which there is a transfer of goods not transformed by the transferor, referring to the place where the transport begins to determine the location of transactions. Resolution 3/2018 admits evidence to the contrary against the presumption provided for in the VAT legislation that a permanent establishment with a tax ID number assigned to it by the tax administration is a taxable person. Finally, Resolution no. 4/2018 understands the first delivery of property to be the delivery subsequent to entering into a contract for the "sale of a building under construction and assignment of development", while denying, at the same time, the appropriateness of the Board to analyse and pronounce itself in favour of the application of a criterion that equitably distributes the tax charged between conflicting administrations.

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