New Year new concerns. Penalties resulting from incompliances with the SII obligations. A reminder


Although never acknowledged officially, it has been understood that up to 31st December 2017 the Tax Authorities did not intend to apply penalties for the failures in the compliance with the SII obligations.


From 1st January 2018 and although there has not still been an official pronouncement, it is to be expected that such an interim no penalties policy will not continue.


This circumstance, along with the fact that the dead-line for the filing of the SII reports is reduced to 4 working days, makes it important to remember the important economic consequences that may result for incompliant companies.


The penalty regime for the SII results from article 200 of Law 54/2003 of 17 December, of General Taxation (known as LGT) that regulates the infringement for incompliance of accounting and registrar obligations. As regards SII, this provision is developed in number 3 of article 16 of Royal Decree 2063/2004 of 15 October, about the penalties regime, which specifically addresses to the delays in the filing of the SII reports.


We attach a scheme of SII dead-lines and penalties so to facilitate the understanding of the implications that may derive from the application of such regulation. In any case, it is important to mention that:


-              The fixed limit of 6,000 Euros per calendar quarter for the penalties that can be applied for the failures to comply with the SII obligations does only apply for the case of delays. In practice, we understand, this will only occur for the case of voluntary regularizations without a previous request from the Authorities


-                 A worst scenario would exist for the case of:


·              Inaccuracies or omissions of data in the SII reports, where the penalty and corresponding fixed limit is determined per invoice and not for the period.


·            Non-compliance with the SII obligation, where there is not a fixed limit at all and the penalty is a percentage on the total turnover of the company.


It should be reminded that in the Spanish tax system there are no “objective” penalties. Accordingly, the application of penalties is conditioned to the Tax Administration motivating the existence of culpability or negligence from the part of the company. On its side, no penalty should be applied for the case that the company can prove that it is not culprit or negligent when failing to comply with its SII obligations (i.e. there is a material error, there is a reasonable interpretation of the law, force majeure, etc.)



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Tuesday, 18 December 2018


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