Penalty procedure: disappearance of justified interruptions

The TS cancels the possibility of computing as justified interruption the time derived from the order to complete the file in the associated inspection procedure.

The Spanish Association of Tax Advisors (AEDAF) files an appeal against RD 1072/2017, which amended the General Regulation of the tax sanctioning regime (RSAN).

Among the articles that are contested, the article related to the possibility of counting as a justified interruption the delay in a disciplinary procedure derived from an inspection procedure in which the file is completed (RSAN art.25.4) is included. The interruption includes the duration of the complementary actions.

The appellant alleges that the contested section lacks sufficient legal authorization. The norm that takes RD 1072/2017 as a reference to justify the interruption (LGT art.104.2 and 211.2) is located within the specialties of administrative procedures in tax matters, from which the sanctioning power is excluded.

The Chamber, after analyzing the applicable regulations, concludes that the referral made to the LGT art.104.2 should be understood for the sole purpose of calculating the maximum resolution period and the obligation to notify, not including other points that are regulated in the article and including interruptions.

It also shows that it makes no sense that currently lacking in temporary relevance the complementary actions in the course of the inspection procedure, grant them importance in the sanctioning procedure when it is contrary to the general rule of regulation of this procedure, which is the absence of causes of interruption

Therefore, the TS estimates the appeal at this point and declares the nullity of RD 1072/2017 art. only. nine: there is no legal authorization, nor can an interruption in the sanctioning procedure be considered justified by reason of a different procedure such as the inspector, which by legal mandate is separated.