If the economic problems in the world were called a pandemic, Spain would be the example of a patient treated by his government with tax measures having no more effects than sedatives that only help to avoid pain and hallucinations.
On March 31th, one of the most controversial measures of this new era was passed by Royal Decree 12/2012, like penicillin on one of the deepest wounds of the Spanish economy: non-declared money and assets.
This measure is known as the “tax amnesty” and consists in filing a return, before 30/11/2012, for any asset and right acquired before 31/12/2010 that has not been declared to the tax authorities, with the advantage of only paying a tax of 10% of its total value, with no sanction, interests or any other extra charge.
The taxpayer will be entitled to apply for this measure for Personal Income Tax, Corporate Tax and Non-Resident Income Tax, as long as no legal verification process has been initiated against him for these matters.
Ownership of assets and rights, and the specific case of money in cash.
The ownership of assets and rights must be legal, unless the legal owner does not reside in Spain and the de facto owner does, in which case the de facto owner (different from the legal one) will be allowed to file the tax.
Regarding money in cash, it must be deposited before December 31st, 2010, on a bank account owned by the person who files the tax return at a credit entity resident in Spain, the European Union or the European Economic Area.
This last measure is irrelevant for the law on Money Laundry; therefore the Executive Services of the Commission on Money Laundry Prevention and Monetary Sanctions will still be empowered to require the regularization and justification of the origin of any money.
Value to be declared
The assets and rights must be declared for the amount corresponding to the acquisition value that had not been previously declared, and – for tax purposes – the value it had before the filing of this Special Tax Return will be maintained.
The non-declared incomes not superior to the declared amount corresponding to the acquisition of assets and rights included in this Special Tax Return will be considered as regularized.
In the event of an acquisition value superior to its market value at the date of the Special Tax Return, in future transmissions only the losses or negative return will be counted, if they exceed both values.
The impairment losses and value corrections related to the assets and rights included in the Special Tax Return will not be tax deductible; and the losses caused by the transfer of these assets and rights won’t be tax deductible either if the acquirer is a “related party” as defined by article 16 of the Spanish Law on Corporate Tax.
Controversy
For many analysts, this measure is just like injecting a vaccine that only introduces a sample of the disease – weaker and subdued – in the patient’s body, so that in due time (yet unknown), the antibodies and the white corpuscle will start to attack him. Because a taxpayer willing to apply to this “amnesty” can justifiably have serious doubts regarding the consequences that could arise for other taxes such as VAT or Wealth Tax, or even about the related criminal liability once the ownership of the declared assets and rights have surfaced.
Besides, the Royal Decree might be analyzed by the Constitutional Court and, as a result, some precautionary measures could be taken regarding its effects, what increases even more the feeling of uncertainty created by this measure.
Mauricio Ticó Piedras
