The Third Chamber of the Supreme Court, in the recent judgment dated June 3 (Rec 84/2018), has considered an appeal filed against the regulatory regulation of costs in the economic-administrative way.

This regulation, now declared void, was expressed in Royal Decree 1073/2017, published in the BOE of 12/30/2017 that modified the General Regulations for the development of Law 58/2003, of December 17, General Tax, in terms of administrative review, and after modifying eight other tax provisions with a total of almost 200 pages, ... came into effect 48 hours later.

In his sentence, the Supreme Court does not hesitate to verbalize a clear corrective to the Ministry of Finance, even stating that:

"Today it is common to feel the profound legal uncertainty and social uncertainty provoked, among other factors, by the imprecision of the legal norms, which is manifested in a very significant way in the fiscal area. (...)"

It should be noted in the normative development, usually, the use of concepts and categories perfectly defined and defined by tax legal science, which in its development in the normative text delimit contours that depart from the concept or category enunciated to end up defining or showing a different fiscal figure. Sometimes, it seems that this technique responds to mere gaps or to own conceptual complexities of a certain tax figure, others, however, discover a purpose directly aimed at overcoming obstacles that would make its application unviable. It is not strange to see how taxes are what constitute real rates or vice versa, or how to play with direct or indirect taxation, or with extra-fiscal taxes, for example. (...)

The modification of art. 51.2 of Royal Decree 520/2005, introduced by Royal Decree 1073/2017, (...), makes it lose its true nature, because we can no longer be talking about the costs of the procedure, but (...) as a fee, as a sanctioning measure or as a patrimonial benefit of a non-taxable public nature, and if any of these figures is evident, it can not be the costs of the procedure.

The ruling concludes that:

"we can no longer be talking about costs of the procedure, but, depending on the perspective from which we approach, as the parties do when examining Article 51.2, it can be identified as a fee, as a sanctioning measure or as a patrimonial benefit of a public nature not tax, and if any of these figures is what is evident is that they can not be costs of the procedure."

The rapporteur of the ruling, Judge Montero Fernández, believes that Article 51.2 of the Administrative Revision Regulation, since its 2017 reform, quantifies the amount of:

"in a general and abstract way"

dissociating it from the specific procedure in which the expenses to be paid occur and dispensing with these.

It is the party appealed the one that ultimately comes to deny the costs of the procedure its status as such, and advocates that it is considered that articles 245 of the General Tax Law and 51.2 of the Regulation establish

"a patrimonial benefit of a non-taxable public nature".

Therefore, the so-called costs, in fact, are necessary expenses incurred by the derived administrative economic bodies and to fulfill the purpose of the procedure processed.

The article annulled by the High Court required that these be quantified in a percentage of 2 percent of the amount of the claim, with a minimum of 150 euros for claims or remedies resolved by a single body, and 500 euros for those who resolve by collegiate body.

In the case of claims of an undetermined amount, the costs must be quantified in the minimum amounts referred to. In addition, these amounts could be updated by ministerial order.