Pablo chico de la Cámara, Catedrático de Derecho Financiero y Tributario en la Universidad Rey Juan Carlos ha sido nombrado miembro del Consejo para la Defensa del Contribuyente. Sin duda es un gran “fichaje”, por el que felicitamos tanto a Pablo como al Ministerio. Con este motivo, quisiéramos dar a conocer a nuestros lectores de habla inglesa las normas básicas de funcionamiento del Consejo (remitimos a los lectores españoles a las referencias incluidas en la página web del Ministerio de Hacienda) así como formular algunas propuestas: a nuestro juicio, el Consejo puede representar un valioso papel en aquellos casos que escapan al estricto sistema de recursos administrativos y judiciales. Sin embargo, sería aún más eficaz si sus propuestas de revocación (en los casos del artículo 219 de la Ley General Tributaria) fueran vinculantes y si su informe se rindiera al Parlamento en lugar de al Secretario de Estado de Hacienda.
Pablo Chico de la Cámara, professor of financial and tax law at the University Rey Juan Carlos has been just appointed member of the Spanish Council for Taxpayer’s Protection. We would like to congratulate our dear colleague -it has been a wise move of the Ministry- and take the opportunity to briefly explain how this institution works as well as to put forward some proposals.
The Council for Taxpayer’s protection was set up by Royal Decree 2458/1996 of December the 2nd. Nowadays is is regulated by articles 34.2 and 242 of the General Tax Act (GTA) as well as Royal Decree 1676/2009, of December the 13th and Resolution of 22 July 2010 of the Secretary of State for Finance.
According to article 34.2 GTA, the Council is part of the Ministry of Finance, it will grant the taxpayers’ rights, it will take care of taxpayers’s complaints related to the application of the tax system by the national Tax Administration and will formulate suggestions and proposals in the terms provided by regulations.
Furthermore, according to article 242 GTA, the president of the Council is a member of the special chamber of the so-called Central Economic Administrative Court which decides on claims formulated by the General Director of Taxes against resolutions of the Central Economic-Administrative Court. This Court is not part of the judiciary, but a (functionally independent) department of the Ministry of Finance specialised in solving taxpayer’s claims. The taxpayer must first challenge the administrative act before the “Economic-Administrative Courts” in oder to have access to the judiciary.
According to Royal Decree 1676/2009, the Council will have 16 members, appointed (and eventually removed) by the Ministry of Finance: four university professors, four tax advisors and eight hight officials of Tax Administration. The president of the Council will be appointed for a period of four years by the Ministry of Finance following a proposal of the Council itself. So far, the president has always been a full professor of financial and tax law.
The main function of the Council is to deal with taxpayer’s complaints on the functioning of the national Tax Administration. The taxpayer will forward the complaint to the Council, but its so-called “operative unit” will forward it to the administrative tax unit involved, who will provide an answer to the taxpayer. The taxpayer has a deadline of a month to express wether he is not satisfied by the answer. In he does so, the Council will study the issue and send a second answer to the taxpayer, forwarding it to the administrative unit involved.
The Council may propose that administrative act will be withdrawn when it appreciates any of the circumstances foreseen in article 219 GTA (that is, in case of manifest illegality, subsequent circumstances which show that the administrative act was wrong, or a breach of the right of defence). However the decision of the Council is not binding for the tax administration.
Furthermore, as a result of its experience regarding taxpayer’s complaining, the Council may propose legislative reforms or other suggestions to the Secretary of State for Finance.
The Council prepares an annual report, which is send to the Secretary of State for Finance and published through the internet.
The Council can play an interesting role where traditional legal remedies do not work. In our view it would be more effective if their resolutions on withdrawal of administrative acts (“revocación”) would be binding, and their report would be submitted to the national parliament.