The Constitutional Court has dismissed the question of unconstitutionality raised by the Third Chamber of the Supreme Court regarding the new wording of article 203.6 b) of the General Tax Law. The questioned precept establishes that the tax infraction due to resistance, obstruction, excuse or refusal of the actions of the Tax Administration, when it is committed by a subject that carries out economic activities and is subject to an inspection procedure, will be sanctioned with a "fine proportional pecuniary of 2 percent of the turnover corresponding to the last financial year whose declaration period had ended at the time of commission of the infraction, with a minimum of 20,000 euros and a maximum of 600,000 euros«. It is a sanction applicable exclusively to obstructive behaviors related to »the contribution or examination of accounting books, tax records, files, programs, operating and control systems» or consisting of the breach of the duty to «facilitate the entry or permanence in farms and premises” or “the recognition of elements or facilities”.

The Supreme Court had considered that this regulation could violate, among others, the principle of proportionality of sanctions inherent to the principle of legality in sanctioning matters provided for in the Constitution. The doubts of constitutionality exclusively affected the single sanction of 600,000 euros that would result from the application of the rule to cases in which the offender presents a very high annual turnover.

The ruling, for which Judge Ramón Sáez was the rapporteur, rules out that the questioned legal precept incurs a violation of the principle of proportionality of the sanctions, which leads to the dismissal of the rest of the unconstitutionality raised.

Regarding the alleged lack of graduation of the sanction, the sentence indicates that, on the one hand, that the precept questioned does leave a certain margin to the applier of the norm to adapt the sanction –reducing it by half– depending on the behavior of the offending subject. And, on the other hand, the rule "takes sufficient account, in its own legal configuration, of the circumstances that the legislator has considered relevant for the quantification of the sanction, among which are the seriousness of the offending conduct, the type of offending subject, the procedural context in which the infraction is verified, its commission modality and its importance for the correct verification of tax obligations«.

In this sense, the judgment highlights, among other elements, the fact that the sanction is only applicable to cases in which the information not provided by the offender to the tax inspection refers to business accounting in the broad sense, and not to information or specific accounting data, which are typified in other precepts with a lower sanction. It also highlights the fact that the conduct must be carried out by a subject that carries out economic activities and that, in addition, it is subject to a tax inspection procedure.

Regarding the alleged excessive nature of the sanction, the Constitutional Court observes that the legislator has addressed the disregard of the conduct and the reproach that the offender deserves for the willful or negligent breach of a tax obligation of a formal nature that directly affects relevant to legal assets of constitutional rank, such as the effective functioning of the tax inspection.