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Taxation and Human Rights

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Nicolás Díaz analyses in an article published in the Thomson Reuters journal Actualidad Jurídica Aranzadi the recent publication of Law 11/2021, which has led to the modification of two aspects of the tax system in which the regulations on fundamental rights and freedoms play an important role

The recent publication of Law 11/2021 has led to the modification of two aspects of our tax system in which the regulations on fundamental rights and freedoms play an important role. On the one hand, Article 113 of the General Tax Law (hereinafter, LGT), reformed as a result of an amendment introduced during the parliamentary processing of the regulation in reaction to Supreme Court ruling 3023/2020 , and which affects the fundamental right to the inviolability of the home of taxpayers (Articles 18.2 of the Constitution and 8 of the European Convention on Human Rights, hereinafter ECHR). On the other hand, Article 95 bis LGT, which regulates the list of tax debtors (where, likewise, the rights recognised by the aforementioned Articles 18 of the Constitution and 8 ECHR may be limited).

Focusing on this second provision (debtors list), we will briefly analyse it from the point of view of its compliance with the legislation on fundamental rights and freedoms. To do so, we will first recall the criteria of the European Court of Human Rights (hereinafter, ECtHR) for allowing interference with the rights and freedoms provided for in the Convention. Thus, it is necessary for the State to meet the following requirements:

First, any interference with a fundamental right or freedom must be provided for by law. The term "law", for these purposes, includes not only rules with such rank, but also rules of lower rank, but in any case, it must meet the requirements of accessibility and foreseeability.

Secondly, it must pursue one of the purposes specifically provided for in the Convention (in taxation matters, the economic well-being of the country has on several occasions served as a justification for limitations on the rights of the taxpayer; the protection of property, added to the list of fundamental rights and freedoms by the first protocol to the ECHR, expressly authorises States to enact laws to ensure the payment of taxes).

Thirdly, the measure must be proportionate and necessary in a democratic society. This requirement of necessity is not to be equated with either "indispensable" or "useful", although in any event the Court grants States a wide margin of appreciation in determining the necessity of the measures adopted.

Examination of whether the rule is discriminatory in nature

Assuming that the above three conditions are met, it remains to examine whether the rule is discriminatory in nature before validating the State's action.

Applying the above to Article 95 bis LGT, we consider that the power granted to the tax administration to publish, periodically, a list of "relevant" debtors, i.e., those with debts of more than 600,000 euros (previously, 1,000,000 euros) not paid in the voluntary period (a list which, in the case of individuals, includes their name and tax ID number, as well as the total amount outstanding), although this is a measure provided for by law and whose purpose may indeed be the economic well-being of the country, it can hardly overcome the requirement of necessity and proportionality. The administration has broad powers to collect the tax debt (enforcement on the debtor's assets, derivation of liability, etc.). The mere fact of publicly "singling out" a debtor does not add any value to the collection function of the administration.

In any case, the Supreme Court will have to rule on the matter, after admitting, by order of 27th May 2021, an appeal in cassation in which it will have to "discern the suitability of the publicity contemplated in Article 95 bis LGT for the right to honour, privacy and the protection of personal data protected by Article 18 of the Spanish Constitution". And, when issuing its judgment, it may take into consideration the criterion of the ECtHR expressed in its 27th June 2017 judgement. In this ruling, whose defendant State was Finland (whose regulation of personal data is much laxer than Spain's, allowing anyone to access the tax data of any citizen), the limitation on the freedom of expression of a media outlet which, on an annual basis, published tax data of Finnish taxpayers, obtained in a legitimate manner, was prosecuted. In the ECtHR's view, insofar as these publications did not contribute to a debate of public interest, this interference with freedom of expression was not contrary to the ECHR. We consider that, similarly, the publication of the list of debtors provided for in Article 95 bis LGT, insofar as it neither generates public debate (it is not its intention) nor contributes directly to the collection of tax debts, must be considered contrary to Article 8 of the ECHR. 

You can read the article in Actualidad Jurídica Aranzadi.

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