ECJ resolution on the obligation to appoint a tax representative in Spain, opposite to the EU law due to the restriction on the freedom on providing services within the EU
This statement, dated December 11, 2014, analyses the action brought by the European Commission against Spain for breach of article 56 of the Treaty on the Functioning of the European Union (TFEU) and article 36 of the Agreement on the European Economic Area to require the appointment of a Spanish tax representative to entities established in other EU Member States operating in Spain.
Specifically, in its application, the Commission specified that Spain had failed to comply with the aforementioned articles by approving and maintaining the following provisions:
– Article 46.c) of the Regulation of Pension Schemes
– Article 86 of the Law on private insurances
– Article 10 of the Non Resident Income Tax Law
– Article 47 of the Spanish General Tax Law
according to which pension funds domiciled in different Member states of Spain that offer occupational pension schemes in Spain, as well as insurance companies operating in Spain under the freedom to provide services, among others, are obliged to appoint a Spanish tax representative.
The Kingdom of Spain justifies the adoption of these measures in that case of non-resident taxpayers, the intensity of control and the degree of effectiveness of actions to combat tax fraud are much higher when there is an immediate interlocutor, as a tax representative.
In this regard, the judgment of the ECJ matches the criteria of the European Commission to declare that Spain has failed to fulfil its obligations under Article 56 TFEU concerning the prohibition on restricting the freedom to provide services within the European Union for nationals of other member states to adopt article 46.c) of regulation Act and Pension Plans and Article 86 of the Law on regulation and supervision of private insurance.
However, the ECJ dismissed the appeal with regard to Article 10 of the Spanish Non Resident Income Tax Law due to the fact that, as the European Commission acknowledges, refers to the obligation to appoint a representative outside the subject of this action situations. And also dismisses the appeal in relation to Article 47 of the Spanish General Tax Law on the basis that the European Commission, to simply allege that this article is the basic rule requiring non-resident taxpayers in Spain to appoint a Spanish representative, the Commission does not demonstrate that modification of this article is necessary to end the alleged breach.
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