Análisis de la responsabilidad tributaria por levantamiento del velo

Resumo

The assumptions of tax liability by lifting the veil introduced Law 36/2006 of 29 November, on Measures for the Prevention of Tax Fraud in sections g) and h) of Article 43.1 of Law 58/2003 of 17 December, General Tax (hereinafter, LGT). This measure is one of the most important developments of the appointed Law 36/2006 of 29 November, it gives the Administration, as indicated in the Explanatory Memorandum of repeated law, the opportunity to react directly «against certain strategies fraudulent encysted in our system and aimed at achieving, if not de facto exemption from tax liabilities, an extremely high delay in compliance by having to seek judicial protection in declaratory phase». It continues the aforementioned explanatory memorandum of assumptions that are inspired by the judicial technique of lifting the veil, and that enshrine «the limits and requirements that the Supreme Court's jurisprudence has outlined, with the sole exception of its novel configuration under the administrative autonomy». However, only the assumption of heading g) of Article 43.1 of the indicated LGT is to sidestep the legal personality and reach people within its substrate, as the epigraph h) of that provision includes a case of concealment of assets. In addition, Article 43.1 .g vicarious liability) and h) of the LGT also noted the exceptional nature and 'last resort' of judicial reference technique, since it is possible to declare the same without first exhausting the remaining alternatives. In our view, some alleged that seek inspiration from the judicial technique of lifting the veil should not ever ignore the structuring element that best defines their employment. We also believe that the indiscriminate use of this technique would run directly against the principle of legal certainty, it would transform the exception the rule, since it ignores the legal personality attribute that the law recognizes emphatically and formally. We also consider inadmissible the use of concepts such vague and imprecise in the wording of Article 43.1.g) and h) of the LGT. Indeed, the legislature has used, with a huge conceptual vagueness and indeterminacy, concepts such as "subtotal effective control or direct or indirect", "common leadership will", "uniqueness of people and spheres" and "confusion or patrimonial deviation" which is not defined, there are no concrete meaning for them in our legal system. This imprecision is, in our view, unacceptable as a figure who seeks to overcome the insecurity that generates another should not be as insecure as the first, because that configuration empty of content. What is more, we believe that the use of concepts such vague and imprecise contravenes the technique of the regulated acts of Article 6 of the LGT and the principle of legal certainty, it gives the Administration so broad discretionary powers that not even combined with the use of legal concepts. And finally, we believe that the procedure for deriving the sanction to responsible tax contravenes the principles of proportionality and personality of the sanction. Indeed, the sanction arising responsible will have been calculated on the basis of the conduct of the principal debtor, regardless responsible behavior itself, in breach thus, that principle of proportionality. Similarly, we believe that the extension of the tax liability Article 43.1.g) and h) of the LGT sanctions the principal debtor violates the principle of personality of the sanction, because the sanction meet the principal debtor without being able to repay the amount is as much as be sanctioned directly, coverage categorically proscribe the principle that we now examine. The principle of personality of the sanction requires linking the objective and subjective type of offense the author of it, then prohibits punish those who did not perform the act or omission typified in the law (nemo pro delicto punitur alieno). For these reasons, we advocate because the legislature directly punish the responsible tax through autonomous offenders types, which attributed the same status offender. This measure would make it possible to respect the stated principles of proportionality and personality of the sanction, since it would be responsible himself who committed the offense, and the penalty is calculated on the basis of their behavior.