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Comments to the Opinion of the European Commission Regarding the 720 Model
In recent days the Motivated Opinion that the European Commission addressed to the Kingdom of Spain in February 2017 in relation to model 720 has been made public. In this opinion, it is considered that the obligation to declare assets and rights abroad violates certain Community freedoms: free movement of persons, free movement of workers, freedom of establishment, freedom to provide services and free movement of capital, insofar as it establishes a discriminatory and disproportionate tax declaration regime for the following reasons:
- Because the sanctioning regime foreseen for the breach of the information obligation or the extemporaneous presentation of the model is much more burdensome than the existing general regime for similar infractions regulated in the LGT.
- Because it establishes a system of taxation of unjustified capital gains derived from the lack of information in the 720 model or due to its extemporaneous presentation linked to a statute of limitations.
- Because it establishes a proportional pecuniary fine of 150 percent associated with unjustified capital gains that is disproportionate.
- Therefore, the Kingdom of Spain is invited to adapt its regulations to Community Law within two months.
The report has been in the hands of the Ministry of Finance for almost two years without allowing access to its content. And during this time, not only has the regulation not been modified, but the AEAT has continued to apply it in its proceedings even with the knowledge that the European Commission considers it contrary to Community Law.
Now, it has been made public, only after the Administration has been obliged to provide it after a request from the National Court in a judicial proceeding concerning a taxpayer sanctioned for presenting the model extemporaneously.
Late but it has arrived, said report will be part and will be incorporated into the processes that the Firm has open against the Tax Administration in relation to the resources and sanctions related to the presentations of the Model 720.
One of the things Mr. Balcells like most about his job is when you get a safe, legal and fair tax situation for the sake of the taxpayer's tranquility and economy, both in previous structuring and planning, and when certain criteria have to be defended before Tax administration.
As a lawyer, he always try to put himself in the place of the one who asks for advice, so that all the options or alternatives that are considered as solutions, are those that would adopt at a personal level if the interested party is himself.