In line with the objective of expanding the collection already begun with Royal Decree Law 3 / 2,016, which involved major changes in the corporate income tax payments and, in turn, to prevent the applications for deferment and division being used by taxpayers for the purpose of Defer payment of taxes and obtain financing from the State indirectly increased the volume of tax debts pending recovery, the legislator now amends the regulation regarding deferrals and fractions of tax debts establishing with date of entry into force January 1, 2012 New procedures and limitations that have already aroused some controversy as some contradictions between the literal diction of the rule and the dynamics of operation of the new procedures established in instruction 1/2017 published by the Director of the Department of Collection of the AEAT, to which must also be added an unfortunate publication through the AEAT website related to deferrals and fractions for the case of the self-employed, which more than clarify has produced even more confusion.

We will analyze the most important aspects of the referenced regulation to comment on how to apply for deferrals and splits.

1) New developments introduced in article 65.2 of the General Tax Law:

Royal Decree 3 / 2,016 has amended article 65.2 of Law 58 / 2.003 General Tax, introducing 3 new cases of indebted debts (letters e), f) and g) and making a modification of the wording of letter b) .

These changes have meant an increase with respect to the limitations on the postponement or split tax debts. Specifically , as a novelty, they may not be subject to deferral or division :

"to) […]

B) tax debts corresponding to tax obligations that must be met by the holder or the obligor to make income on account.

(C) [...]

E) Debts resulting from the execution of firm decisions partially or totally dismissed in an appeal or economic-administrative claim or in a contentious-administrative appeal that were previously suspended during the processing of said appeals or claims.

F) Debts derived from taxes that must be legally passed on unless duly justified that the assessed contributions have not actually been paid.

G) The debts corresponding to tax obligations that must be fulfilled by the obligor to make fractional payments of the Corporation Tax.

The requests for deferral or division referred to in the various paragraphs of this section shall be inadmissible. "

2) Specification of the debts that are affected by these new limitations:

As mentioned in the previous point, it would not be appropriate to request the deferral or splitting of debts corresponding to tax obligations that must be complied with by the withholding or obligated to make income on account, which does not suppose that it can not be requested for example a postponement In the scope of the personal income tax, of the model 130 of the payment on account or of the own debt determined by the model 100 of annual declaration of IRPF.

With respect to debts that must be legally passed on, their deferral or splitting may be requested provided that it is justified that the installments have not actually been paid in accordance with the strict literality of the Law, but nevertheless in case the amount of the debt whose postponement Or fractionation is less than € 30,000, it can be requested without guarantee or justification of the transitory difficulty of the treasury, nor the justification that the quotas passed have not been actually paid according to instruction 1 / 2.017 through the automated procedure , Thus contravening the legal provision referred to above.

3) Scope of application of the new regulations:

The postponement or splitting of the payment of debts whose competence is attributed to the AEAT may be requested, even if this competence is of a supplementary nature, either through the automated procedure, the ordinary procedure or in relation to debtors in the situation of creditors.

Exemptions from civil liability for crimes against public finances and applications for deferral or division of payment of customs debts are excluded from the scope of application.

4) Types of procedures for requesting deferral or fractionation:

Two types of procedures are established on the basis of the amount of the debt whose deferral or splitting is requested (with specialties regarding the case of bankrupt), applicable to both individuals and companies.

The procedures are the AUTOMATED procedure and the ORDINARY (or NON-AUTOMATED) procedure .

The AUTOMATED procedure may be used when the amount of the debt whose postponement or fractionation is requested is equal to or less than € 30,000.

It is important to remember that at the time of the application for deferral or splitting and for the purpose of determining the limit of € 30,000, any other debts of the same debtor for which you have previously requested another request for Postponement or fractionation that was not resolved, as well as the amount of outstanding maturities of debts already deferred or divided, unless they are duly guaranteed.

In the event that the amount of the debt to be deferred or split is higher than € 30,000, the ORDINARY procedure must be used .

The essential difference between a type of the AUTOMATED procedure and the ORDINARY procedure is that in the first case it is not necessary to provide a guarantee, nor to justify the transitory difficulties of the treasury, nor in the case of debts subject to repercussion (VAT) the need to justify the non-payment Of taxes passed, that is to say that the Administration will presume "de facto" that they are credited without further ado.

In the event that an application for deferment or split-up is filed for a debt amount that entails the application of the ORDINARY procedure , and then partial payments of the debt will be made before the resolution of the application in order to be able to reduce it to try to benefit Of the AUTOMATED procedure, the Tax Administration will proceed to the liquidation and notification of the interest of delay corresponding to the partial revenues made and will continue the processing of the application in a NON-AUTOMATED or ORDINARY formfor the rest of the debt.

5) Maximum payment deadlines in the AUTOMATED PROCEDURE:

It establishes within the AUTOMATED procedure a distinction between debts corresponding to individuals and debts corresponding to legal entities.

In the case of legal persons, the maximum payment period to be requested will be 6 months .

In the case of natural persons, the maximum payment period to be requested will be 12 months.

If a lower payment period has been requested, the requested will be granted, provided that in no case the amount to be collected in each period, excluding interest, is less than € 30

In the case of requests for deferment or fractionation equal to or less than € 1,000, it will be resolved according to the proposal requested by the taxpayer and provided that the minimum monthly amount of € 30 is respected. However, if the collection body considers that it is not convenient to comply with the proposal for payment made by the taxpayer, it will comply with the maximum periods referred to above.

6) Denial of requests made through the AUTOMATED procedure:

Applications will be denied in the following cases:

• Provided that the debtor has other debts in an executive period in respect of which no deferral or split of payment has been requested, whose providence of urgency has been notified, provided that the total amount of such debts exceeds 600 €.
• When the request for deferral includes any debt that had previously been included in an agreement finalized by default of payment.

7) The ORDINARY (or NON-AUTOMATED) procedure:

It will be used for the management of deferrals or debt splitting of more than € 30,000.

In this procedure it is necessary to make an assessment by the Tax Administration of a whole series of documents that can delay the resolution of the application and therefore it is established that in case it is estimated that the resolution of the application will take 2 months Or more, a provisional payment schedule will be established that will have a maximum duration of 3 months as a monthly payment and with a maturity date on the 20th of each month and which will then be "merged" with the agreement reached in the resolution of the application .

The terms of concession of deferral or fractionation that are established for this procedure are:

• In case of guarantee contribution with bank guarantee or certificate a maximum period of 36 months will be granted .
• For other guarantees: 24 months.
• In the case of request for total or partial waiver of guarantees: 12 months.
• On an exceptional basis, the period may be increased to 48 months.

In the event that the obligor has requested a shorter term, the one that results from the shorter term between the one proposed by the taxpayer or the body of the Tax Administration will be agreed.

In this procedure will require the contribution of the following documentation:

I. accreditation of legal representation, when necessary.

II. Contribution of guarantee.

In the event that no collateral or surety bond is provided, it will be necessary to provide a certificate issued by the credit institutions with which it is usually operated to justify the impossibility of obtaining such guarantees.

A priori, and according to the instruction, the preventive notices of attachment previously practiced by the AEAT will not be accepted as collateral, but it will be necessary to set up a mortgage or pledge on them.

III. Valuation of property.

It will also be required, even if they were also offered on the occasion of another payment adjournment previously requested, if for the time elapsed or the nature of the goods was considered necessary.

For these purposes, the valuation certificates expire after 6 months from the date of issue. In the case of appraisals more than six months old but less than two years, an update of the same will suffice.

IV. Contribution of the Annual Accounts presented in the Mercantile Register for the case of natural or legal persons, businessmen or professionals required by law to keep accounts.

V. In the case of requests for deferral or splitting of tax debts arising from taxes that must be legally passed on to prove the non-payment of contributions, the following documentation must be provided:

• List of invoices issued that have not been collected with customer identification, amounts and expiration date of the same.
• Documentary justification proving that they have not actually been met. It proves that it is difficult for us to understand and practice with certainty, since it is based on justifying something that has not happened (diabolical proof).
• List of invoices received, with identification of suppliers and amounts, proving if they have been satisfied and, where appropriate, accreditation of the means of payment used.
• Copy of any requirements or actions taken against the creditor claiming the unpaid bills.
• In the event that the deferment is granted, a clause will be included in the same that specifies that if during the term of the agreement the effective collection of the tax passed, the amounts actually collected must be paid in full in favor of the public finances in payment Of the outstanding debt to the full satisfaction of the latter, even if this entails an early maturity of debts postponed or split. For example, the cancellation due to breach of the concession agreement, when having collected the amounts passed and pending, the taxpayer does not destine them to the payment of the delay in advance within a maximum period of 10 days from the effective collection.

8) CONCLUSIONS :

There are contradictions between the literal content of article 65.2 of the General Tax Law and instruction 1 / 2.017 of the Director of the Collection Department of the AEAT and the latter with the statement issued by the AEAT through its website, which is necessary to Clarify to provide legal certainty.

For example, when establishing the instruction 1 / 2,017 in the automated procedure, the exclusion of the need to justify that the quotas passed have not been collected, as well as that they should not justify the treasury difficulties, when from the drafted of the Law nothing It is said in this respect; Or when the statement on the website seems to understand that it only refers to a specialty for self-employed and in instruction 1/2017 extends the scope of all measures to any individual and legal entity.

Nor is it detailed in relation to the ORDINARY or NON-AUTOMATED procedure , how some of the documentary justifications that are required can be accredited, such as, for example, that invoices have not actually been collected, to the extent of the difficulty of proving something that has not happened .

As it can be observed, being several and important the doubts and contradictions that arise with the new regulation, it would be desirable that they be clarified (and to be able to be through a legal provision that grants the legal certainty of which it lacks a simple instruction) in a short term Of time to avoid situations of legal uncertainty.