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The Effects of Electronic Notifications in the Absence of Prior Notice by e-mail
As is well known, the AEAT has its own notification regime in its relations with the companies that is developed through the so-called authorized electronic address (DEH). The mandatory electronic notification system (NEO) consists precisely in the exclusive use for the tax administration of the electronic means to make communications to certain taxpayers in a necessary way, and to others (especially non-business or professional individuals) who voluntarily request it if they wish so. Simultaneously, the DEH allows taxpayers to interact electronically with the Administration.
Every taxpayer holding a DEH will have an associated “electronic mailbox” where they will receive notifications of administrative acts. Therefore, notifications are not sent to a particular email of the administrator. Of course, the electronic authentication of the taxpayer is required to access the content of the notifications, which should ensure the accreditation of the making available and that of its receipt.
And here the problems begin, since one of the most important points of the procedure is that the effects of the notification are produced both by the access by the taxpayer to its content and by the elapse of the period of ten calendar days from the making available in the DEH without accessing it.
Surely for this reason, a simple and effective mechanism consisting of a courtesy notice to an e-mail designated by the administrator that informed him of the existence of a communication in the DEH, as well as the maximum term, was regulated in the NEO system's own regulations. for its opening. Unfortunately, the regulation of this notice explicitly included that:
"The lack of practice of this notice will not prevent the notice from being considered fully valid"
with which the effectiveness and validity of the notification is legally recognized, regardless of whether or not the manager has known it.
That is to say: a system that tried to overcome with new technologies the manual delivery of the communications that the Administration wanted to make to the administered, has ended up becoming a system that may not guarantee the right of the citizen to know the content of a notification that perhaps have received if you do not know. And what is more: the simple "courtesy notice" through an e-mail that helps so much to make the communication knowledge effective, turns out that it is actually more dangerous than it seems, since they are used to receiving the mentioned notice, when this does not occur, the omission of periodic verification of the notifications is facilitated and therefore the harmful effects of the ignorance on the part of the administrator of the content of the notification.
This leads us to the last consequence: to assume a perhaps unjust tax debt, or to conflict in court.
That is why the courts have already entered and have done so in an apparently divergent way, but in only one direction: it must be guaranteed that the administered can access information and exercise the right of defense.
For this reason, the ruling 579/2018 of the Supreme Court of Catalonia of July 5, 2018, estimating the contentious-administrative appeal filed by the plaintiff entity is noteworthy when the managing body has omitted the prior notice to the taxpayer's email address, in which case in concrete:
- Electronic notification was successfully delivered
- Management was negligent in that it omitted a fifth prior electronic notice after four correctly sent
- Clearly the law regulates that such prior notice is not mandatory
- The company also acted incorrectly by not agreeing to the opening of the notified act
In this case, the Court judged that the principles of equality, legal certainty, and of own acts derived from a reasonable, legitimate confidence and good faith in the actions of the Public Administration prevailed in a notification whose ultimate purpose is to ensure correct reception in order to be able to then exercise the legitimate right to defense.
In a different sense, but with nuances, the Constitutional Court dismissed the question of constitutionality filed in its ruling 6/2019, which nevertheless analyzed a case whose object was of a labor nature and not contentious-administrative, and therefore the lack of notice was produced through the notification of a sentence of a Social Court in the LEXNET mailbox of the procedural representative of one of the parties without giving prior notice in the email mailbox provided by himself, despite the obligation to do so, and everything and that the regulation of the LEC regulates (with great similarity to the NEO system) that the lack of practice of this notice does not prevent the notice from being considered valid.
It is therefore an analysis with a regulation contained in laws different from those that regulate the NEO but in a parallel way and therefore with significance in our analysis.
Well, and everything and recognizing the ruling that the mechanism of prior notices are a guarantee for the administered, the Constitutional Court dismisses the question of unconstitutionality filed, qualifying the notice as a simple warning.
A particular vote of the court does not seem to close the door to the problem, since it understands the displacement of the damage of the non-compliance by the State as unreasonable and arbitrary precisely to the citizen user of the Administration of Justice.
And already concluding and by way of reflection: Couldn't more guarantees be given to taxpayers? Couldn't the mandatory sending of the "notice" be required? Couldn't the publication in the BOE be required if after a reasonable period of time the notification was not opened (currently various programs allow any notification that is published and refers to a specific taxpayer, including traffic fines) to be identified by DNI?
In short: could not a system be regulated that combines the rights and duties of the Administration and the administered with equanimity and without an abuse of power by one with respect to the others? And with that: wouldn't we avoid future conflict and gain justice and legal security?
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.