September, 15 2023

The TC questions the Treasury's electronic notification system.

Imagen noticia

TC opens a scenario to the invalidity of electronic notifications

The system of tax notifications, embodied in the LGT, is mainly beneficial for the Administration, aimed at creating the conditions for a quick execution of administrative acts.

The persons and entities obliged to receive by electronic means the communications and notifications made by the AEAT in its actions and procedures, have 10 calendar days to access their notifications, after which they will have all their effects and the procedure will continue (art. 28.3 of Law 11/2007, of June 22).

However, this leads to a serious legal presumption, which does not admit proof to the contrary, that once the formalities established for the notifications have been formally complied with, the recipients of the notifications have reached full knowledge of the administrative acts, for the purpose of being able to react in due time with the appropriate claims or appeals.

Well, the recent Constitutional Court Ruling 147/2022, of November 29, 2022, based on the previous 84/2022, of June 27, considers that "the judicial bodies cannot presume, without harming the right enshrined in art. 24 of the Spanish Constitution, that the notifications made through third parties have reached the knowledge of the interested party, when the same questions the receipt of the act of procedural communication or the date on which the letter was delivered by the third party, in which case, in view of the circumstances of the case, of the allegations made and of the evidence that may eventually be adduced, they are obliged to issue an express pronouncement on the possibility or not that the third party has complied with its duty to deliver the act of procedural communication to its addressee in due time....for this reason, those who have been harmed by the acts of communication to third parties must be offered the possibility of destroying the presumption that works against them by proving that the content of the act has not been transferred to them in due time and form."

In the case in question, the notification of the inclusion of the company in the mandatory electronic notification system was delivered by the postal service to the daughter, a minor, of the legal representative of the company, who had no relationship whatsoever with the company. Furthermore, there was no reliable proof that the minor gave the notification received to her parent, the legal representative of the company.

In view of the failure of the taxpayer to appear before a subsequent verification and liquidation procedure, and despite the fact that the Tax Agency was aware that the taxpayer did not know that he was summoned, the AEAT continued with the procedure, first in the voluntary period and subsequently in the enforcement period.

Finally, the taxpayer became aware of the debt as a result of the seizure of his bank accounts, when his right to challenge the debt in ordinary proceedings had already expired.

In view of the aforementioned facts, the Constitutional Court declared that the right to effective judicial protection had been violated by the strict application of electronic notifications by the Tax Agency, since it should have used alternative forms of communication in order to warn the taxpayer of the procedure initiated.

And in our opinion, what is remarkable in this pronouncement by the Constitutional Court is when it remarks that "the Tax Agency did not fail to comply with the then current regulation on electronic notifications, but that it cannot be taken to a rigorous application, in which it reaches the absurdity of considering that the taxpayer, of whom the Treasury knows that he does not know the situation, does not justify in documents what is being asked of him".

Therefore, "...The lack of defense originating in administrative proceedings has constitutional relevance then, when the cause that provokes it prevents or hinders the taxpayer from seeking judicial protection against the administrative act in question, eliminating the possibility of using the means of challenge that the tax system specifically provides against the different acts dictated in each procedure".

In conclusion, the TC opens a scenario to the invalidity of electronic notifications as long as the ignorance of the notification of the administrative proceedings for reasons not attributable to the taxpayer is proven.

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