The TEAC Resolution of October 30, 2023 (RG 10039/2022) modifies its non-reiterated criteria set forth in the Resolution dated January 23, 2023 (RG 1024/2022) in relation to the delimitation of the objective element of the type of infringement described in article 196 of the LGT. With this change of criteria, the TEAC returns to its previous criteria and considers that the violation of article 196 of the LGT is configured in such a way that its objective element allows the inclusion of all the cases in which the UTE incorrectly imputes the taxable base to its partners, also for having calculated or determined it incorrectly .

The successive changes in criteria have resulted from various rulings by the National Court that analysed the issue and reached different conclusions.

Thus, the Resolution of January 23, 2023 cited above adopted the criterion established by the Judgment of the National Court dated November 23, 2022 (appeal no. 551/2020) , which interpreted article 196 of the LGT in the sense that it could not be applied in relation to adjustments to the tax base declared by the entity under the income imputation regime, given that the conduct corrected by said adjustments occurs at the time of determining the tax base, not at the time of imputation to the partners or members of the entity. In his opinion, the sanction of article 196 of the LGT would only be applicable to cases in which the partners had been charged a percentage other than that to which they would have been entitled. An appeal was filed against this ruling, which is currently pending a decision.

Subsequently, the National Court corrected its own criteria in Judgment dated April 26, 2023 (appeal no. 758/2020) , based on the following arguments:

D.- Without ignoring previous precedents, the Court, which may qualify or modify the criteria whenever it so provides, considers that the interpretation upheld by the Administration is more accurate for the following reasons:

1.- As we have explained at the end, the reason for the discrepancy is centered on the interpretation of the expression "incorrectly impute (...) taxable bases or results to partners or members." For the plaintiff, this expression covers only those cases in which, regardless of how the tax base is calculated, a different percentage is attributed to the partners; while for the Administration it would include not only the cases in which a different percentage is imputed, but also those in which the BI is incorrectly calculated and therefore "incorrectly imputed".

2.- Entities under the income imputation regime have special sanctioning rules contained in arts. 196 and 197 of the LGT.

The imputation regimes that currently exist are those of Economic Interest Groups (AIES) and Temporary Business Associations (UTE).

From a complete reading of art. 196 of the LGT, in relation to the regulation of the special regime, it can be inferred that UTEs may have resident or non-resident partners. Since these entities do pay IS tax on the part of the base that is attributable to non-resident partners or members, failure to correctly declare that part or fraction of the BIs attributable to them (to non-residents) will constitute an ordinary infringement that may be sanctioned in accordance with the provisions of arts. 191, 192 and 193, but not by art. 196 of the LGT.

On the other hand, when it comes to resident partners, those to whom the UTE has charged an incorrect BI, in principle, cannot be sanctioned, since they do not commit any infraction, since it is not their responsibility to charge correctly or incorrectly, but rather to correctly declare what the UTE has charged them. This point is essential when interpreting the scope of art. 196 LGT. Please note that, in application of the principle of personality of punishment, members who limit themselves to correctly declaring what the UTE has imputed to them cannot be sanctioned, the UTE having its own management or administration body - art. 8.d) of Law 18/1982 - The guilt for the erroneous calculation is enforceable on the UTE, since it cannot occur in someone who limits himself to declaring what is imputed.

Well, precisely for this reason, because the members of the UTE who have limited themselves to declaring what has been imputed cannot be sanctioned, a rule is needed that specifically enables the imposition of the sanction - arts. 196 and 197 LGT - and from here, also, a conduct such as the one analyzed must be sanctioned, because if the rule is interpreted as the appellant claims, the members of the UTE who have correctly declared in accordance with what the UTE imputed to them could not be sanctioned, and the UTE could not be sanctioned either, which makes no sense, leaving the incorrect configuration of the BI unpunished.

In short, the meaning of "incorrectly" imputed cannot be interpreted in the sense proposed by the appellant that it refers only to the incorrectness of the percentage imputed to each UTE, but, far from it, includes all the cases in which the UTE has "incorrectly" imputed a BI, both by imputing an incorrect percentage and by imputing a lower BI.

As indicated, this is the criterion finally adopted by the TEAC in the Resolution of October 30, 2023, which is set as follows:

It is possible to appreciate the violation of article 196 LGT (incorrect imputation, by entities subject to an income imputation regime, of taxable bases or results to partners or members) when what has been regularized is actually the taxable base of the entity subject to an income imputation regime that it had calculated incorrectly.