We use cookies to improve our services and user experience. If you continue browsing, we understand that you accept their use.

To learn more

I accept

NEWS AND AGENDA

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.

Go to Administrative Doctrine

Scientific doctrine

Forum Fiscal continues its series devoted to providing full explanations of the Basque Economic Agreement. This series is written by Javier Armentia Basterra, Head of the Regulatory Development Unit at the Provincial Council of Araba/Álava. Issues 242-245 of the journal contain chapters VII, VIII, IX and X, respectively. The first three of these chapters complete the analysis of the regulatory capabilities and the ability to apply various taxes, and the fourth covers management and procedural regulations.

On the subject of the agreements entered into by the Basque and Spanish authorities in 2017, issue nº 244 of Forum Fiscal features an article by Gemma Martínez Bárbara (Head of the Fiscal Policy Unit of the Provincial Council of Bizkaia) analysing the solution provided by the modification agreed on the point of connection for inheritance tax to the problems of breaches of the rule on freedom of movement of capital. Issue nº1 55 of the Basque taxation journal ZERGAK includes articles by José Rubí Cassinello (Technical Secretary General of the Revenue Department of Bizkaia) analysing the changes made to the Agreement by Act 10/2017 of 28 December, and on the contents of the May 2017 agreements on the settlement of quotas from 2011 to 2017 and the contents of the new Quota Act for the five-year period from 2017 to 2021.
Issue nº 244 of Forum Fiscal contains tywo articles on the resolutions of the Board of Arbitration for the Economic Agreement. The first is by Iñaki Alonso Arce (Deputy Head of Coordination and Technical Assistance at the Provincial Revenue Department of Bizkaia), dealing with the levying of certain withholdings on earned income by a body answerable to the institutional administration of the central government. The second is by Idoia Zapirain Torrecilla (a Technical Officer at the Revenue Department of the Provincial Council of Gipuzkoa); it analyses the powers of the Board of Arbitration in cases where to settle a dispute a prior legal ruling on the operation in question is needed (in this case whether the operation is subject to VAT).
Finally, two further articles are worthy of mention: the first, by Iñigo España Ariza, also appears in issue nº 245 of Forum Fiscal, and takes an in-depth look at the implementation in the regulations for Bizkaia of the anti-BEPS measures drawn up by the OECD. The seconds is by Benjamí Anglés Juanpere, and analyses the nature and development over time of transfers to municipal bodies in the Basque provinces.

Go to Scientific Doctrine

 

A court in Madrid orders the publication of the agreement subscribed by the central government and the Basque government in May 2017

Madrid's Central Court for Administrative Proceedings no. 7 issued a ruling on 12 July 2018 ordering Spain's Ministry of the Treasury and Public Administrations to disclose the agreement signed on 4 May 2017 between the Government of Spain and the Basque Autonomous Community on the settlement of the tax contribution in previous years and the setting of the five-year contribution through to 2021, considering that the access to information should be understood in a broad sense and that any restrictions on it should be of an exceptional nature. A researcher submitted a request to the Ministry for the purpose of conducting a study on the financing of the autonomous communities and the system of tax contributions. The Ministry rejected the request, whereby the researcher had no other choice but to appeal to the Transparency and Good Governance Board (CTBG in its Spanish initialism), which ruled in the researcher's favour in a decision issued on 15 September 2017 that was, in turn, contested by the Ministry.

The Court argues that "in any case, there is clearly a greater public interest in obtaining that information, which should prevail over the hypothetical lack of virtuality of the agreement or the need for other proceedings or actions for the effective enshrinement of the agreement. Pursuant to the above, and assuming the "strict, when not restrictive" interpretation that is to be made both of the restrictions on access to information and of the reasons for the refusal to process the request, the present appeal is therefore upheld".
In turn, the Supreme Court, in a judgement delivered on 3 July 2018, ratifies the Basque region's right to establish assumptions of responsibility other than those provided for in Spain's General Law on Taxation [Ley General Tributaria], confirming the doctrine issued by the Higher Court of Justice of the Basque Country through its lower court ruling. The precept questioned declares the joint responsibility of effective or legal directors, partners with a direct or indirect holding of 20 percent of capital, joint owners or investors, and their family members up to the second degree, of those undertakings that have practiced withholdings that remain pending payment, for the amounts of those withholdings they have deducted in their self-assessed tax returns for personal income tax.

Go to jurisprudence

Once hackers´ attacks are solved, the web page is turned on again

Dear All,

As you will have witnessed in recent months, the website activity has been practically non-existent due to certain hacking problems, which forced us to change the company that hosted all our website documents.

The migration processes prevented us from updating the latest information on the Economic Agreement.  We have therefore prepared a summary of the main document incorporations that we have performed during this period of inactivity. We have also used this opportunity to update the videographics (full HD 1920 x 1080) explaining the Economic Agreement and the quota.  The graphics have a fresher and more dynamic approach and feature animated elements whose appearance on the scene is synchronised with the voice-over and text overprints to reinforce the key and specific messages of each of them.  The underlying objective is to showcase the main characteristics of the Economic Agreement and the Quota in a simplified, attractive and dynamic way in order to make them understandable to the broadest audience possible.

I would like to end by explaining that this period of inactivity has made it difficult to get out the half-yearly newsletter due around now, but it will be back in December.

Kind regards

 

NEW DOCUMENTS ADDED TO THE WEBSITE

DATE/Nb.

AUTHOR

TITLE/COMMENTS

SCIENTIFIC DOCTRINE

FEDEA PP  2017/14

DE LA FUENTE MORENO, Ángel

Notas sobre el proyecto de nueva ley del cupo

Forum Fiscal 237

ARMENTIA BASTERRA, Javier

Todo sobre el Concierto Económico .    Capítulo II. Concierto Económico y su relación con la Constitución de 1978 y el Estatuto de Autonomía del País Vasco. El Concierto Económico en el marco de la Unión Europea (I)

Forum Fiscal 238

ARMENTIA BASTERRA, Javier

Todo sobre el Concierto Económico. Capítulo III. el Concierto Económico en el marco de la Unión Europea (II)

Forum Fiscal 239

ARMENTIA BASTERRA, Javier

Todo sobre el Concierto Económico. Capítulo IV. Competencias generales de las instituciones de los Territorios Históricos y principios generales para regular el sistema Tributario foral (I).

Forum Fiscal 239

SILVESTRE LÓPEZ, Jose Luis

El domicilio fiscal

Forum Fiscal 240

ARMENTIA BASTERRA, Javier

Todo sobre el Concierto Económico. Capítulo V. Competencias generales de las instituciones de los Territorios Históricos y principios generales para regular el sistema Tributario foral (II)

Forum Fiscal 240

ALONSO ARCE, Iñaki

Los pagos anticipados y su cómputo a efectos del volumen de operaciones

FEDEA PP  2018/02

DE LA FUENTE MORENO, Ángel

Sobre la generalización del sistema de concierto

Forum Fiscal 241

MERINO JARA, Isaac

BEPS, Unión Europea y Hacienda Foral

Forum Fiscal 241

ARMENTIA BASTERRA, Javier

Todo sobre el Concierto Económico. Capítulo VI. Capacidad normativa y de aplicación de los tributos en cada uno de los impuestos

ADMINISTRATIVE DOCTRINE

Junta Arbitral

Resolución 2017-14, de 15 de noviembre

IVA: localización de las operaciones; Entregas de carburantes

Junta Arbitral

Resolución 2017-15, de 15 de noviembre

Conflicto positivo incoado por el contribuyente; inadmisión

Junta Arbitral

Resolución 2017-16, de 21 de diciembre

Domicilio fiscal de las personas jurídicas

Junta Arbitral

Resolución 2017-17, de 21 de diciembre

Domicilio fiscal de las personas jurídicas

Junta Arbitral

Resolución 2017-18, de 22 de diciembre

Domicilio fiscal de las personas físicas

Junta Arbitral

Resolución 2017-21, de 22 de diciembre

Conflicto negativo; acta única practicada por administración competente

JURISPRUDENCE

TS

Au 2018-01-19

NFGT: Procedimiento de revisión distinto de los previstos en la LGT; vulneración de la norma de armonización

TS

 St 2018-04-03

Norma Foral General Tributaria; procedimiento de gestión iniciado mediante autoliquidación: falta de regulación de la caducidad procedimental

LGT; procedimiento administrativo común; carácter básico vulneración de las normas de armonización

TS

St 2018-04-16

IVA Operaciones realizadas por no establecidos

TS

St 2018-04-17

Retenciones sobre rendimientos del trabajo; administración institucional del estado

TSJPV

St 2017-09-07

IVA: tributación compartida; cambio de VOP

TSJPV

St 2017-09-17

Impuesto sobre Primas de Seguros; requerimientos de información; eficacia interruptiva de la prescripción

TSJPV

St 2017-09-19

Impuesto sobre primas de Seguros; reglas de localización

TSJPV

St 2017-09-20

Impuesto sobre Sociedades: actuaciones de gestión por la administración que no tiene la capacidad inspectora:

TSJPV

St 2017-09-21

Impuesto sobre Sociedades: actuaciones de gestión por la administración que no tiene la capacidad inspectora:

TSJPV

St 2017-09-27

Ley de armonización, coordinación y colaboración; procedimiento de centralización de obligaciones tributarias entre las administraciones tributarias forales

TSJPV

St 2017-10-16

IBI; recargo por viviendas desocupadas; vulneración de principios constitucionales

TSJPV

St 2017-11-10

Reglas de armonización: adecuación a la LGT en cuanto a terminología y conceptos

IRPF: Actividades Económicas; estimación objetiva; rendimiento real

Francisco Javier de Landaburu Universitas 2018 Prize

The jury for the Francisco Javier de Landaburu Universitas 2018 (EuroBasque)  Prize has given first pace to the research project "Participation of sub-state entities in the multi-tier fiscal and financial governance scenario of the EU: a critical summation and proposals for the future based on experiences in the Basque Country", submitted by researchers Mikel Erkoreka, Santiago Larrazabal, Gemma Martínez and José Rubí. The project will be conducted in the context of the cooperation between the Centre for Documentation and Research on the Economic Agreement and the Provincial Treasury Departments (University of the Basque Country) and the Ad Concordiam association for the promotion and dissemination of the Economic Agreement (Provincial Council of Bizkaia, University of the Basque Country & University of Deusto).

The research project, which is to be completed at the end of this year, will focus on the future configuration and development or the architecture of institutions in the EU: taxation and the participation of regions and sub-state entities in European decision-making forums. Its goal is to provide a critical analysis of the multi-tier fiscal and financial governance scenario in the EU, highlighting the role to be played by regions and sub-state entities in the process of European integration on the basis of experiences in the Basque Country.

The final report and conclusions will be published and distributed in the next academic year.

The Jury also awarded two runner's up prizes to the Individual project “The Articulation of Basque Federalism in the EU: Basque participation in the EU and the potential opened up by Act 25/2014 on Treaties and other International Agreements" by Xabier Ezeizabarrena and the group project "The fundamental role of regional entities in the construction of a new European political federation" by C.F. Molina del Pozo, J.A. Jiménez Carrero and R. Cirefice.

 

Ring-fencing does not extend to general provincial tax regulations

The jurisdiction of the Constitutional Court applies only to the lawfulness of provisional regulations governing different taxes. This results from the inadmissibility ruling issued by the Constitutional Court on 14 November last in its resolution concerning a question of unconstitutionality brought by the Supreme Court in regard to general provincial tax regulations in Bizkaia that excluded management procedures begun by self-settlement and the declaration of a general period of six months established for the notification of the resolution of tax-related proceedings, by contrast with the General Tax Act (LGT), which only excludes enforced recovery proceedings. The decision handed down by the Court features a dissenting vote by four of the 11 senior judges that make up the Plenary body, who support the argument put forward by the representatives of the provincial authorities.

Also regarding the legal armour of foral laws, the last issue of the Crónica Tributaria magazine contains an article entitled «Commentary about Constitutional Court Sentence 121/2016: constitutionality of the legal precepts that establish a control of the foral fiscal norms shared between the constitutional jurisdiction and the ordinary jurisdiction» by Santiago Álvarez García, Professor of Spanish Public Finance and Tax Systems at the University of Oviedo. In that article, the author summarizes and discusses the arguments that the Highest Court presented in order to state the constitutionality of the Organic Law 1/2010, of February 19.

Go to jurisprudence

Anniversary of the Economic Agreement

To mark its 140th anniversary, the Economic Agreement has been the focus of attention for its agents, political parties and other stakeholders in our society. This message includes the main statements made in the printed press that we have been able to compile regarding this significant date, as well as other information on the convention between the central Spanish government and Navarre, the Cupo (the amount the Basque Country has to pay to the central government), the internal model for the distribution of resources, and the common financing system.

Press summary

Seminar on the Economic Agreement on 1 March

On 1 March, the day after its 140th anniversary of the Economic Agreement, the Centre for Documentation on the Economic Agreement and the Basque provincial treasury departments, in cooperation with the Departments of Contemporary History and Public Law (Financial & Tax Law Area) of the University of the Basque Country, is to hold a seminar under the title "140 Years of the Economic Agreement and the Outlook for the Future".

The opening address will be given by the Provincial Councillor for the Treasury in Bizkaia, José María Iruarrizaga, and by Joseba Agirreazkuenaga, holder of the Chair in Contemporary History and Director of the Centre.

The subsequent speakers will be Dr. Eduardo Alonso Olea, who will talk about the situation in 1878 after the end of the war, and the initial drawing up of the Economic Agreement, followed by former Chief Councillor of the Provincial Council of Araba/Álava Dr. Juan Mari Ollora, who will outline his experiences in negotiating for the recovery of the Economic Agreement in 1978.

After the break Dr. Mikel Erkoreka will talk about the dynamic nature of the Agreement and its continual adaptation, and the final presentation will be given by Dr. Iñaki Alonso Arce, who will discuss the challenges posed for the Economic Agreement in the framework of the European Union.

The event will end with a debate moderated by Dr. Susana Serrano Gazteluurrutia.

Programme for the seminar

Jurisprudence concerning the Economic Agreement

In a ruling of October 16, 2017, the Constitutional Court ratified the legal principle established with the judgement of December 1, 2016 regarding the interpretation of the harmonising rule contained in Article 3 of the Economic Agreement, on the necessary adjustment of the tax system of the provinces to the General Tax Act in terms of terminology and concepts. The Court's interpretation is that the "immobility of the amount arising from the correct application of the objective estimation is an intrinsic characteristic of that system for determining the tax base". By failing to meet this characteristic, the precept challenged infringes the said harmonising rule and is unconstitutional and null and void.

For its part the High Court of Justice of the Basque Country, in its judgement of July 7, 2017, rejected the request for pecuniary liability made in the field of Tax on Retail Sales of Certain Hydrocarbons on the basis that this was a case of pecuniary liability of the legislating state, albeit with the distinctive feature of the intervention of the province, with the Provincial Law in question having been passed in the absence of authority over the regulation of the tax. The ruling division thus concludes that the legal principle emanating from the Supreme Court's ruling of December 5, 2012 is applicable, which exempts the provincial administration acting as respondent from attributable liability, on the understanding that the causal relationship of the damages caused by the application of the tax corresponds solely and exclusively to the State Administration.

Go to jurisprudence