The economic situation has put and puts many freelancers, SMEs and large companies in our country to meet the fiscal requirements. Regardless of size and terms and regulations, the truth is that the Value Added Tax (VAT) is an obligation that monthly or quarterly appears in all cases previously raised.
It also happens that every particular or company has a series of daily operations in which such tribute is supported, through which, not only faces taxation, but also obtains the income necessary to generate its economic activity.
Now, what if they are not charged? Does the obligation regarding VAT maintain? What answer does the unpaid have? We answer all these questions from Art. 80 of RD 1624/1992, of December 29, to reach the current RD 828/2013, of October 25, 2013, who through his Art. 24, rules the current one Framework of action. It sounds very technical, so we’ll go step by step.
VAT: Basic concepts
Although it does not correspond to this entry completely deepen the value added tax, we do believe it convenient to point out specific aspects in order to facilitate the understanding of this tesiture:
– What is VAT? VAT is a tribute of an indirect nature that falls on consumption and gravel: the deliveries of goods and benefits of services carried out by entrepreneurs and professionals, intra -community acquisitions and imports of goods.
– Is the result positive? Then you must enter the treasure.
– Is it negative? In this case, if it is negative and declares it quarterly, the result is compensated for the following statements -iquidations. In this case, if at the end of the year, in the last statement presented, the result is negative, you can choose to request the return or compensate for the negative balance in the settlements of the following year.
– If it is negative and is declared monthly (inclusion has been requested in the monthly return record), the return will be made month by month.
With the above, the daily life of VAT is exposed in all usual operations in business becoming. Now, from this day to day some unpaid invoices are also part, and since as they are also present, should we declare it too?
Unfortunately, since it is the exercise of authorized economic activity. In this sense, and returning to the interpellation of the economic situation, compliance with taxes and the addition of defaults, it is true that it can erode the treasury of the self -employed and SMEs, however, there are certain cracks to face to this fact in a more profitable way for affected cases.
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The Spanish Public Treasury, aware of this series of problems, has adapted its legislation in this regard so that the affected creditors can reduce their taxable VAT bases in the following cases:
– Operations included in bankruptcy procedures.
– Operations not vested into bankruptcy procedures, considered as totally or partially uncollectible.
This modification transcends through the 2013 RD above, which modifies the Value Added Tax Regulation (art. 80 of RD 1624/1992, of December 29, 1992), in addition to the General Regulations of Development of Law 58/2003, of December 17, General Tax (RD 520/2005, of May 13, 2005) and the General Regulations of the actions and procedures of Tax Management and Inspection and Development of Common Standards of tax application procedures (RD 1619/2012, of November 30, 2012).
On the other hand, in case a partial collection occurs prior to the modification, it is always understood that the VAT is included in said amount. Finally, the rectification of the deductions of the recipient of the operation, determines the birth of the corresponding credit in favor of the Public Treasury.
VAT in operations in bankruptcy proceedings
Starting from Art. 80 of the LIVA (62/2003), in addition to Art. 24 of La Riva (RD 87/2005, 22/2003), it is determined that the tax base can be reduced when the recipient of operations subject to VAT has not made the payment of the quotas impact and there is a bankruptcy procedure against him.
Since January 1, 2015, the deadline for tax base modification in the cases of creditors’ contest becomes three months (and not one) from the publication of the contest in the BOE.
With the entry into force of Law 7/2012, of October 29, some cases are also introduced in which the rise tax base must be modified, after having been previously modified downward as a result of a Creditors Contest Declaration:
– Once the Order of the Provincial Court is firm that the contest declaration order revokes under appeal.
– In any state of the bankruptcy procedure, as long as the payment or consignment of all the recognized credits is verified, the full satisfaction of the creditors by any other means or the non-revocation of the insolvency situation. /p>
– When the common phase of the contest has completed and the resolution by which the withdrawal or resignation of the recognized creditors is accepted.
(The tax base modification, in any case, must be carried out by issuing a new rectifying invoice in which the quota appropriate)
VAT in operations not included in bankruptcy proceedings
The second assumption of voluntary modification of the tax base of VAT refers to the case in which the operations are partially or totally uncollectible, and therefore, the tax quotas corresponding to them, without the deducer being necessarily found in a bankruptcy procedure.
with effect as of January 1, 2004, such modification is allowed due to default of the consideration in cases where the debtor does not have the status of entrepreneur or professional, which generalizes this possibility.
The main requirements to access this new type of taxable base are:
– Time: That a year has elapsed since the accrual of the tax, without the collection of all or part of the credit derived from it.
– Registration: that this fact has been reflected in the registration books required for VAT.
– Amount: That the recipient of this operation acts in the condition of entrepreneur or professional, or in another case, that the taxable basis of said movement, excluded VAT, is exceeding € 300.
– form: that the creditor has urged the debtor of the necessary collection by judicial claim or by means of notarial, even in the case of credits established by public entities.
– That the rectification of the tax base is carried out within three months of the end of the period of one year from the moment of the accrual of the operation, and communicates to the administration in the month following the Rectification date.
Special Regime Operations of the cash criteria and installments
Within the spectrum of non -unknown operations in bankruptcy procedures, we also find those in which it is possible to accept the special criteria of the cash criteria, which since January 1, 2015 a special rule is introduced to declare a loan as uncollectible .
Thus, the modification of the tax base is allowed when the accrual of said special regime is produced by application of the deadline of December 31 of the year immediately after the date of carrying out the operation, without having to wait for A new course of the 6 months or 1 full year, usual disposition of the regulations.
We also find some operations due to non -installments or with postponed price. To begin with, what is considered in time? Any operation in which it has been agreed that your payment must be made effective in successive terms. And at a postponed price? Those agreed to make their payment effective in one and more.
In this sense, when will an uncollectible payment be considered? As long as the period between the accrual of the impact tax and the expiration of the last or unique payment exceeds 6 months for SMEs and 1 year for large companies. The procedure to modify the taxable base goes through a judicial claim, in which the debtor will be urged, provided that the aforementioned deadlines are respected.
Finally, you should know that since January 1, 2015, it is also incompatible of the tax base according to Art. 80, 4 of the LIVA for those credits prior to the date of the official announcement itself.
Taxation is a day -to -day matter, therefore, it is always advisable .com