ATT ASSESSORS Insurance and services Balaguer Lleida

Adjustments and fractionation in the payment of taxes


The modification of art.65 of the LGT made by Royal Decree-Law 3/2016, which eliminated the possibility of granting deferrals or installments of certain tax debts, determines the need to update the criteria given to the collection bodies of the AEAT In terms of deferrals and payment installments, in terms of terms, guarantees and other aspects of the procedure, through the new Instruction 1/2017, of January 18, which has been published in the section of news of the AEAT website.

Instruction 1/2017, which is applicable to applications submitted as of January 1, 2017, distinguishes between 2 procedures:

- The procedure for the massive automated resolution of postponement requests.

- The general procedure for the non-automated resolution (ordinary procedure).

Instruction 1/2017 does not apply to requests for postponement and division of debts of civil liability for crimes against the Public Treasury, or in the divisions of payment of customs debts, which are regulated by EU Law.

With regard to general criteria, the Instruction transcribes art.65 of the LGT, which in its section 2 details the debts that can not be subject to postponement or fractionation of payment and which will be subject to inadmissibility, enter They, the derivatives of the fractionated payments of the Corporation Tax, and the derivatives of taxes that (like the IVA) have to be legally affected, unless it is duly justified that the reimbursed installments have not been effectively paid.

Procedure in the resolution AUTOMATED massive postponement requests

The management of deferrals and divisions of those debts referred to in article 82.2 a) of the LGT (debts of a lower amount than that established in the tax regulations that may be waived in whole or in part of the constitution of Guarantees: do not exceed € 30,000) is carried out through a computer tool that allows the resolution through automated administrative actions of requests for deferrals and payment installments.

The computer tool does not perform requirements because it proves the transitory nature of the treasury difficulties or the lack of income from the affected taxes. It is presumed accredited both circumstances with the formulation of the application.

The automated processing will not apply to customs and tax debts derived from customs declarations.

When the amount of the outstanding debt is equal to or less than € 1,000, through an automated resolution process established for this purpose, the postponement will be resolved in response to the proposal of terms that the obligor indicated in its sole resolution. Application and provided that the amount of each term, excluding interest, is not less than € 30.

Maximum deadlines in applications with automated resolution:

- 6 monthly installments for debts of legal entities and entities of the art.35.4 LGT (inheritance, property communities and other entities that, lacking legal personality, constitute an economic unit or a separate property that can be imposed)

- 12 monthly installments for debts of natural persons.

In no case, the amounts established in these terms, excluding interest, may be less than € 30.

The periodicity of payments will be, in any case, monthly.

NOTE: Order HAP / 2178/2015, of October 9, published in the BOE 2015.10.20, raises the limit exempt from the obligation to provide collateral in applications for postponement or fractionation to 30,000 euros. Section 2 of the Order states that guarantees for requests for postponement and payment fraction of the debts referred to in the preceding article will not be required, when their amount as a whole does not exceed 30,000 Euros and are found both in the voluntary period and in the executive payment period, without prejudice to the maintenance, in the latter case, of the existing obstacles to assets and rights of the debtor at the time of submission of the application.
For the purpose of determining the indicated debt amount, at the time of the application, the debts referred to in the application itself will be accumulated, as well as any others of the same debtor for which they are You have requested and not resolved postponement or fractionation, as well as the amount of outstanding maturities of debt.

General procedure for resolution NOT AUTOMATED

The submission of the request for deferral or fractionation and the documentation to be attached must be made by telematic means in case the applicant is one of the subjects obliged to relate electronically with the Administration.

Submission of applications may be made during a voluntary period or in an executive payment period.

The processing will be adjusted, in general, to the following criteria:

- Provisional payment schedule
- Complementary documentation
- Requirements. Consequence of inattention
- Evaluation of the transitory nature of the economic-financial difficulties of the obligor to pay.
- Background study and other circumstances
- Examination of the guarantees offered
- Examination of the conditions for the waiver of guarantees
- Adoption of precautionary measures during the processing of the application.

A provisional payment schedule can be set when it is estimated that the resolution of postponement or fractionation may take longer than 2 months.

In any case, the provisional payment schedule will be mandatory when it is expected that the resolution of the postponement will be delayed more than 2 months and the amount of the application will exceed € 150,000.

The payment schedule can last for a maximum of 3 months, counting from the date of notification. Payments of a monthly nature and expiration date will be established on the 20th of the following month.

In the event that the party liable for payment fails to comply with the established payment schedule, such circumstance must be taken into account in the resolution proposal for the agreement.

For the resolution of the files, the collection bodies will assess the transient nature of the economic-financial difficulties of the obligor to pay. As such, the absence or shortage of sufficient liquid resources, on a temporary and non-structural basis, must be understood, which does not allow the cancellation of its tax obligations within the established deadlines for it.

The non-admission of the application in the suppositions provided for by law, is postponed or deferred, unless they are duly guaranteed.

The Instruction 1/2017 establishes the specialties of the non-admission in the case of applications regarding deferrals or payment installments of reimbursed taxes:

In general, requests for deferrals or installments of payment of tax debts derived from taxes that have to be legally passed should be subject to inadmissibility.

The concession or, where appropriate, the denial of one of these applications will be subject to the credentialing of the lack of payment by the applicant of the affected fees that are the subject of the application.

For these purposes, together with the application, documentation will be provided accrediting the absence of payment, in particular:

1. List of invoices issued that have not been charged with identification of customers, amounts and expiration date of the same.
2. Documentary justification that proves that the same have not been effectively satisfied
3. List of invoices received, with identification of suppliers and amounts, confirming whether they have been satisfied and, if applicable, accreditation of the means of payment used.
4. Copy of all the requirements or actions have been made to the creditor claiming the payment of unpaid bills.

In any case, a single requirement will be made for the purpose of providing the necessary documentation to process the application.

The reimbursed and collected taxes are unattainable.

In the processing of requests for postponement or fractionation of payment of reimbursed taxes, the following circumstances will be taken:

1. If from the documentation provided by the taxpayer, it is deduced that the amount of the earnings actually collected corresponding to the period applied for is greater than the tax quota to be entered, Inadmissibility

2. If from the documentation provided by the taxpayer, it is deduced that the amount of the affected fees actually collected corresponding to the period applied for is less than the tax quota to be entered, the sun will be inadmissible Unless the taxpayer confirms, until the end of the term of attention to the requirement, that he has made the payment of the part of the debt corresponding to the amount of the fees actually received and charged

If the aforementioned part is entered into, the deferral or fractionation of the payment requested will be processed, but only for the remaining amount of debt after applying the aforementioned income, according to the criteria General admission.

Given the inajornability of debts due to reimbursement and collection of taxes, in these cases, when the granting of the deferral or fractionation of payment is appropriate, a clause is included in the concession agreement which specifies that, if during The validity of the agreement will result in the effective collection of the reimbursement, these amounts, actually collected, must be paid in full in favor of the Treasury in payment of the outstanding debt until full satisfaction of it, although this implies An early maturity of deferred or fractionated debts. In this sense, a clause will be established in the concession agreement for which the cancellation will be canceled due to a breach thereof, when, having collected the amounts pending and outstanding, the taxpayer does not allocate them to the advance payment of the loan, Postponement within a maximum period of 10 days from the effective payment.

The MAXIMUM PERIODS, taking into account the guarantees offered, must be in the Following:

- Bankruptcy and Certificate of Insured Insurance: Maximum Term of Up to 36 months.

- Other Guarantees: Maximum Term of up to 24 months

- Exemption cases, total or partial exemption or Second and subsequent Charges or Guarantees on real estate: Maximum Term of Up to 12 months

From the day of application of Instruction 1/2017 the following Instructions are not applicable:

Instruction 6/2013, of December 9, of the Department of Collection on management of deferrals and divisions of Payment of withholdings and Income to the Account Quant and of debtors in situation of contest of Creditors.

Instruction 4/2014, of December 9, of the Director of the Department of Collection of the State Agency of the Tax Administration, on management of deferrals and payment divisions.

Instruction 6/2015, of October 20, Department of Collection of the State Agency of the Tax Administration, which is amended by the Instruction 4/2014.

Instruction 3/2016, of November 11, of the Department of Collection of the State Agency of the Tax Administration, by which is modified, by means of the introduction of an addendum, the Instruction 4/2014.

Sixth Instruction of the Instruction 3/2015, of July 16, of the Department of Collection on Actions to be carried out with respect to obliged declared in competition and on the documentation that must be sent in relation to certain decisions related to the insolvency proceedings.