Between 2012 and 2014, both included, the tax auditors have been assessing many tax infringement procedures, as they considered that such a behaviour qualified as a severe tax infringement, imposing penalties amounting to 100% of the taxes upon the total energy produced (art. 19.3 of the Excise Duties Act).
Although the Decision confirms the registration as a substantial element in order to benefit from the excise duties suspensive regime, it states that, under the new regime in force as of 1st January 2015, such lack of registration is no more considered a tax infringement. Such a conclusion has been reached based on the Decision issued by the Customs Central Department the 2nd March 2015 where the Customs Central Department said that since the Excise Duties Act is an ordinary Act, the principle of the most favourable rule is applicable. As per such, since this behavious does not qualify under the new regime as a tax infringement, no fine should be imposed.
The TEAC reproduces the guidelines outlined by the Legal Services of the Customs Central Department according to which, in principle, there should be no more infringement procedures open against power plants that, under the previous regime, produced energy without being registered for excise duties purposes.
In the event of files pending for resolution by the Tax Authorities or under review/ appeal (i.e. recurso de reposición), the Tax Authorities will issue new assessments cancelling the previous ones.
Finally, if the assessments have been already appealed before the economic and administrative courts, they should be annulled based on the previous arguments.
We recommend those taxpayers affected by such a Resolution to review their files and to act accordingly. Should you need more information in this respect, please do not hesitate to contact us by e-mail (firstname.lastname@example.org).