Consequences of making the tax declaration out of time II

First, these declarations are common in those cases where the person makes the declaration before the Tax Agency requests it (in plain words: the person who has to pay taxes makes the declaration before the Tax Agency is aware of him not having done so and before presenting the request to do so).

In these cases, there are some surcharges called “out of time surcharges” and they are those stated in Article 27 of Ley General Tributaria.

Concept	Surcharge
Up to 3 months	5%
Up to 6 months	10%
Up to 12 months	15%
More than 12 months	20% plus interests (*1)

* 1. When surcharge is up to 12 months, no interests are applied. If it is more than 12 months, the surcharge applies together with delay interests calculated from the starting time after such 12 months.

Note: Those surcharges are reduced to 25% whenever you pay for the tax and the remaining amount of the surcharge.

Requirements

That the declaration or self-assessment is presented out of time stated within every tax own legislation.
That the result of the self-assessment or assessment from declaration, either to be entered or refund.
That there has not been necessary any prior request by the Tax Agency, asking for the presentation of the declaration or self-assessment of reference.
We consider prior request any action made with formal knowledge by the person who has to pay taxes, and which leads to the acknowledgement, formalisation, checking, surveying, insurance or payment of the tax debt.
Communications for information purposes are not included in this consideration and they are used to ease to the person who has to pay taxes to voluntarily do so, but without the requirements and formalities requested for the same.
That the self-assessment specifically identifies the payment period to which it makes reference.
That the self-assessment only includes data related to the period to which it makes reference.

Consequences

The presentation of a declaration or self-assessment out of time implies that a surcharge shall be applied according to artículo 27 LGT and the exclusion of fines which could be requested.
The presentation of a declaration or self-assessment out of time in which the abovementioned requisites do not apply, shall not have a surcharge applied to this, but, it will to the fine arising from the same. Read more hereunder.

Calculation of surcharge

Base

The surcharge amount shall be calculated applying the percentage according to the pertinent item:

The amount to be entered form the self-assessment out of time.
The amount of the self-assessment from the tax declarations out of time.

Calculation

The surcharge is a variable percentage depending on the time elapsed since the end of the term set forth by the legislation of each tax, to present the tax declaration or self-assessment until the date of its presentation.
In the event of a refund improperly obtained by presenting the complementary self-assessment, the term to determine the applicable surcharge will be computed from the date of the refunding up to the date of presentation of the self-assessment, refunding the amount improperly obtained.
In case that from the refunding it was to be obtained not only the total refund but also an amount to be entered, not done at that moment, there would be two different surcharges:
One about the refund, where they apply the delay from the date of the same.
The other about the amount to be entered, where they apply the delay from the end of the term set forth by the legislation of every tax to present the self-assessment.

The calculation of the months shall be made from one date to the other and if during the ending month there was no equivalent date to that of the beginning of the calculation, it will be understood that the term expires the last day of the month.

Applicable surcharge

To present within the 12 months following the end of the term set forth for the presentation:

Within 3 months: 5%
Within 3 and 6 months: 10 %
Within 6 and 12 months: 15 %
Without delay declaration there are no fines.

To present once the 12 months have ended from the end of the term set forth for the presentation:

General of 20 %.
With delay interests: they will be calculated according to the time elapsed from the day following the 12 months up to the moment the declaration or self-assessment has been presented.
There are no fines.

WARNINGS: This article has general information and, in your particular case it may have some peculiarity that shall have to be studied separately. Also, please take into account that, in order to write this article, we have used the legislation applicable at the time of writing it, which means that something might have changed when you read it. We encourage you to request advice to your lawyer on your particular case.

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