What happens with the obligation to submit Form 720 after the CJEU ruling?

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On 31 March 2022, the deadline expires for filing the informative declaration on assets and rights located abroad for the 2021 tax year – Form 720.

The Court of Justice of the European Union has ruled, in its judgment of 27 January 2022, that certain aspects of the regulation of the declaration of assets abroad (Form 720) are contrary to the free movement of capital recognised in Article 63 TFEU and Article 40 of the Agreement on the European Economic Area. Specifically, it decided:

1-. To declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 63 TFEU and 40 of the Agreement on the European Economic Area, of 2 May 1992:

• by penalising the non-compliance or imperfect or late compliance with the informative obligation relating to assets and rights located abroad with fixed-amount fines whose amount bears no proportion to the penalties provided for similar infringements in a purely national context and whose total amount is not limited.
• by providing that the non-compliance or imperfect or late compliance with the informative obligation relating to assets and rights located abroad entails, as a consequence, the taxation of undeclared income corresponding to the value of such assets as «unjustified capital gains» without the possibility, in practice, of relying on limitation periods;
• by penalising the non-compliance or imperfect or late compliance with the informative obligation relating to assets and rights located abroad with fixed-amount fines whose amount bears no proportion to the penalties provided for similar infringements in a purely national context and whose total amount is not limited.

2-. To order the Kingdom of Spain to pay the costs.

In this way, the Court does not rule on the obligation to submit Form 720, which continues to be in force, but rather, as indicated, determines the failure by the Kingdom of Spain to fulfil the obligations incumbent upon it in relation to the impossibility of invoking the limitation period of the right of the tax administration to determine the tax liability and demand its payment and in establishing an absolutely disproportionate penalty regime.

Without prejudice to the fact that the Ministry of Finance is trying to take advantage of the processing in the Senate of the amendment to the Corporate Income Tax Law and the consolidated text of the Non-Resident Income Tax Law, originating from Royal Decree-Law 4/2021, of 9 March, in relation to hybrid mismatches, to introduce a set of amendments that adapt the declaration of assets and rights abroad to the CJEU ruling, we remind you that the obligation to submit Form 720 continues to be in force, and it must be submitted before 31 March 2022.

For this reason, also for the 2021 tax year, information must be provided through the aforementioned Form 720, which can only be submitted electronically, regarding the assets and rights located abroad, considering three blocks: i) bank accounts; ii) securities, which also include rights, insurance and income deposited, managed or obtained outside Spain; and, iii) real estate.

This obligation to declare for the first time is excluded for each of the aforementioned blocks when the value of each block does not exceed 50,000.00.- € euros.

For those who submitted Form 720 last year, or in previous years, submission will only be mandatory when any of the joint balances of the three different blocks of assets subject to mandatory reporting has experienced an increase of more than 20,000 euros compared to those that determined the submission of the last declaration.

In any case, the submission of the declaration will be mandatory for those assets already declared and with respect to which the taxpayer loses the condition that determined at the time the obligation to declare, for example, if a property that was declared in Form 720 has been sold or due to death.

Which subjects are obliged?

Individuals and legal entities resident in Spanish territory, permanent establishments in such territory of non-resident persons or entities and entities under income attribution regimes (communities of property, civil companies, pending estates…) will be obliged to submit this annual informative declaration. In addition to the legal holders, and unless some exemption applies that must be carefully analysed, the so-called beneficial owners are obliged, that is, those who own or control more than 25% of the aforementioned assets through entities with or without legal personality.

We are at your disposal to assist you in everything you deem necessary in relation to the above.