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As we reported in our alert dated March 15 (here), Royal Decree 463/2020, of March 14, 2020, declaring the state of emergency, introduced a scenario of generalized suspension of time periods, time limits and administrative procedures.

That suspension regime was only retained in relation to tax procedures, however, until Royal Decree 465/2020, of March 17, 2020 (published on March 18) expressly excluded them from that general rule on suspension and reaffirmed the validity of the original time periods for filing tax returns and self-assessments.

On that same March 18, Royal Decree-Law 8/2020, of March 17, 2020 was published which filled the gap left by that exclusion of tax procedures from the general rule on suspension of administrative procedures, by introducing, in article 33, special rules on suspension of time periods in the tax field (see our alert).

We immediately highlighted at the time the lawmaker’s omission of administrative review procedures, which had been left without specific legislative coverage in the measures associated with COVID-19. 

We specifically had in mind the time periods for lodging appeals or economic administrative claims against tax acts or for appealing against decisions delivered in economic-administrative proceedings, where those time periods had started running before the declaration of the state of emergency.

Royal Decree-Law 11/2020 (see our alert) provided a solution to this omission. Namely, it clarified that, between the entry into force of the declaration of the state of emergency (March 14, 2020) and April 30, 2020, the time period for lodging appeals for reconsideration or economic administrative claims governed by Law 58/2003, of December 17, 2003, the General Taxation Law (LGT), and its implementing regulations, will start to run from April 30, 2020, in cases where that time period had already started running and had not ended on March 13, 2020, and also where the administrative act or decision that is the subject-matter of the appeal or claim had not yet been notified. It also determined that this measure will also be applicable in the appeals for reconsideration and claims in the tax field governed by the revised Local Finances Law.

Beyond a few doubts that still remain (including in relation to the time period for pleadings in review procedures, which are still lacking specific provisions in the legislation), the new legislation has reopened the problem related to the potential mismatch that may occur between the new challenge time periods and the time periods for payment in the voluntary period of challenged tax debts.

What may actually occur as a result of the new legislation is that the time periods for payment in the voluntary period of debts may end in a few cases before the end of the time period for bringing appeals or claims as a result of suspension in this second case.

Faced with this new scenario, and if it is not possible to bring forward the commencement of those appeals (to avoid a potential late filing, strictly speaking), prudence dictates that, if suspension of the assessed tax debt is going to be elected, the request for suspension and the provision of the relevant guarantees should precede the filing of the appeal or claim, with express mention of the exceptional reasons for that particular course of action. It is moreover recommendable that, ultimately, the procedure should be completed by subsequently providing in the proper time and form the reasons justifying the filing of the appeal or the claim.

It is true that this mismatch could already occur at another stage in the procedure in the legislative scenario created by the measures adopted earlier, because additional provision 2 of Royal Decree 463/2020 established an absolute suspension of the time periods for filing appeals for judicial review, as opposed to a simple delay in the time period for payment of the tax debt that could be commenced as a result of full dismissal of an economic-administrative claim. In that case, an identical mismatch could also arise which, however, could be “sorted” by bringing forward the notification under article 233.9 of the General Taxation Law and its subsequent validation, when it has become possible to file the appeal with a request for suspension and an offering, if applicable, of the relevant guarantees.  In fact, even before the situation created by the declaration of the state of emergency, this mechanism was being accepted in administrative practice, subject to satisfaction of all the requirements mentioned.

A few of the doubts that emerged with the first pieces of legislation published to tackle the situation caused by the public health crisis have therefore been resolved; but others continue to exist and a few new ones have appeared.

We therefore must insist on the need in this time of legislative upheaval for legislative technique to be more precise, if possible, than in normal times. This requirement is for the sake of legal certainty and will, therefore, benefit everyone.