The recalculation of the economic loss in the graduation of penalties

The calculation of the financial loss is determined by the percentage between the base of the penalty and the total amount that should have been paid in the self-assessment or by the proper declaration of the tax or the amount of the refund obtained. In addition, if the financial loss ranges between:

• between 10 and 25%, the penalty is increased by 10 points;
• if it is between 26 and 50%, by 15 points;
• between 51% and 75%, by 20 points;
• and when it exceeds 75%, by 25 percentage points.

The financial loss is 97.23% (the basis of the penalty for the amount of what should have been paid), increasing the penalty by 25 percentage points. On the other hand, the appellant considers that the net amount should be taken into account, which implies a percentage of 61.62%, increasing the penalty by 20%, instead of the 25% applied.

In order to determine, for the purpose of calculating the financial loss for the assessment of penalties, whether the net amount or the differential amount should be used as the denominator, legally defined as “the total amount that should have been paid in the self-assessment”, when the amount of the two amounts is different, the Supreme Court highlights the numerous reasons according to which the financial loss, as an element of aggravation of the standard penalty, must be measured on the basis of that damage produced in a real and true sense, disregarding in this respect an isolated or literalist interpretation of the criminal rules from which an autonomous idea of the economic damage different from that actually caused – and also different between similar cases, and even between different taxes – is derived.

These reasons are summarised, inter alia, in the following arguments:

1. The field of penalty law makes it necessary to incorporate principles such as those of criminality, culpability, proportionality and interpretation in favour of the offender.
2. The criterion of economic damage taken into account by the legislator as an aggravating factor in the fine is nothing other than a qualifying element of the liability to pay penalties, which can be none other than the damage actually caused to the Treasury. Thus, in a first approximation, instalments, payments on account, withholdings, etc., form an integral part of the tax debt.
3. As with any qualifying or modulating element of liability in matters of penalties, this economic damage, by causing an increase in the quantum of the fine, must necessarily reflect a greater reproach than that which can be imputed to the commission of the basic conduct.

This means that the envisaged aggravation, as a factor affecting liability, must be culpable and affected by intent or fault.

In the light of that argument, it cannot be agreed that the financial penalty, the qualified penalty, is higher or lower merely because of the fact that instalment payments have or have not been made – or, in other hypotheses, payments on account or withholdings have been satisfied – since that circumstance is completely irrelevant from the point of view of the offence, its social reproachability, culpability and the legal interest protected.

4 . Any sanctioning rule must be certain and clear. Far from the observance of such an elementary requirement, the rule under discussion here is confusing, if one observes the formulation of its reference to the self-assessment as the only and incommunicable canon of non-compliance and economic damage.

That said, the Court considers that the interpretation advocated in cassation by the appellant State Administration allows the absurdity of being able to apply a higher or lower percentage of financial loss depending on an indifferent factor from the perspective of the reproachability of the conduct, such as whether there have been payments on account, instalment payments or withholdings, and the amount in which they have been made, which does not depend on the will of the person penalised as an integral element of the infringement of the duty to pay that is penalised and its specific qualification.

This leads to situations of clear and notorious inequality between similar cases, or in which tax duties are breached in a similar way. Thus, for the same fraud, i.e. a single action of failing to declare and pay the same tax debt, the criminal response that is linked to it varies, incomprehensibly, depending on circumstances that are completely unrelated to the reprehensible action and its result of economic damage, such as the existence or not of instalment payments and their amount.

In the light of the foregoing, the Court dismisses the appeal and sets out the following criteria:

– For the purposes of calculating the economic loss for the purpose of setting penalties, the concept of the net amount must be used, i.e. that which takes into account, as part of the debt paid, the amount of the payments on account, withholdings or instalments.

-There is no autonomous legal concept of what can be considered economic loss for the purposes of penalties that does not take into account the real and actual pecuniary damage caused to the Treasury, taking into account all the obligations satisfied, even if they have not been satisfied in the self-assessment of the tax.

-Finally, and in the field of corporate tax, the instalments legally paid must be taken into account, as an integral part of the tax debt, for the purposes of determining the exact economic damage as an aggravating circumstance of the penalty, regardless of the consequences that may be applicable, where appropriate, in relation to breaches of this duty.

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