The recent Judgment of the Supreme Court of November 23, 2020 (No. 491/2019) has resolved an issue of great interest in tax matters: the scope of the concept of “prior requirement” for the purposes of imposing the surcharge of Article 27 of the General Tax Law, (hereinafter, LGT) for the presentation of an extemporaneous declaration “without prior requirement” or, where appropriate, of the corresponding sanction when it has been made “with prior requirement“.
The discussion in this process has focused on the very concept of the figure “without prior requirement” and, in this same sense, the spontaneous nature or not of a regularization carried out after a previous inspection or verification of the Tax Administration. The Supreme Court concluding that the concept of “with prior requirement” should be understood in a broad sense, so that it is “possible that the complementary self-assessment of a later period can be considered a direct and immediate consequence of the settlement carried out for a previous period, without the need for an administrative requirement in the strict sense ”.
In conclusion, and according to this last Judgment, the knowledge of relevant facts reflected, for example, in a certificate of conformity or liquidation of a certain year, can be considered as a prior requirement and, therefore, an extemporaneous declaration presented after the signature. of the act or notification of the liquidation may be considered the consequence of a prior request from the Administration, thus opening the way of sanction.
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