Given the confusion in the sector in this regard, we need to delve into the statement made a few days ago by the Tax Agency, based on its literalness and our experience as auditors.
The main paragraphs of the law:
“On October 11, 2021, articles 29.2.j) and 201.bis of the General Tax Law will come into force, introduced by Law 11/2021, of July 9, on measures to prevent and combat tax fraud. (Seventh final provision of Law 11/2021).”
Our opinion: The first paragraph makes it clear that the law enters into force as of October 11.
“…Article 29.2.j) establishes “the obligation, on the part of producers, marketers and users, that the computer or electronic systems and programs that support the accounting, billing or management processes of those who develop economic activities, guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records, without interpolations, omissions or alterations of which the proper annotation is not left in the systems themselves.”
This article adds that “Regulations may establish technical specifications that must meet these systems and programs, as well as the obligation that they are duly certified and use standard formats for legibility.”
The regulatory development mentioned in article 29.2.j) is currently underway, so the way to comply with the obligations established in said article is not yet completely defined and it will be necessary to wait for the Regulation to establish the requirements that the systems must meet and computer or electronic programs, as well as, where appropriate, how to certify them…
Therefore, we must wait for the regulatory development to know in detail the requirements that computer programs and systems must meet, as well as, where appropriate, the form of certification or accreditation that said requirements are met.”
Our opinion: Although it is true that article 29.2.j) is included in letter e) which, as we will see later, says that it will not apply at the moment, later we will understand how these dimensions are still necessary to comply with the rest of the letters, as well as its annulment as a sanction is merely temporary.
“…Article 201.bis regulates infractions for manufacturing, production, marketing and possession of computer systems that do not meet the specifications required by the applicable regulations.
Section 1 defines as a serious tax offense the manufacture, production and marketing of computer or electronic systems and programs that:
a) allow different accounts to be kept under the terms of article 200.1.d) of this Law;
b) allow not to reflect, totally or partially, the recording of transactions carried out;
c) allow recording transactions other than the entries made;
d) allow altering transactions already registered in violation of the applicable regulations;
e) do not comply with the technical specifications that guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability of the records, as well as their legibility by the competent bodies of the Tax Administration, in the terms of article 29.2.j) of this Law;
f) the manufactured, produced or marketed systems are not certified, being obliged to do so by regulatory provision.
The letters to), b), c) and d) will be directly applicable from October 11, 2021.
The letters e) and f) explicitly require regulatory development. Therefore, they will not be applicable until said Regulation is approved and enters into force…”
Our opinion: Sections a) to d) are SANCTIONABLE from October 11, 2021, postponing the sanction of the e) and F). In other words, is software that fails to comply with sections from a) to d)? The answer is resounding, YES.
Now let’s ask ourselves a question, being the concept of transaction from our point of view that “economic fact”, such as invoice, collection or accounting, how can we protect our software so that it does not allow, for example, deleting invoices from closed or sent periods, etc. if I do not apply dimensions of integrity, traceability, conservation? It is obvious that even if section e is annulled in the sanction, its application is still necessary in order to comply with sections a) through d).
“…Section 2 of article 201.bis refers to the possession by users of computer or electronic systems and programs that do not comply with the provisions of article 29.2.j) of this Law, when they are not duly certified having to be so by regulation or when the certified devices have been altered or modified.
Therefore, until the regulatory development of the certification referred to in this section is produced, users may not be sanctioned for breach of this article…”
Our opinion: The sanction to the end customers of the software is temporarily paralyzed.
- Does the law say that billing software continues to be sanctioned in certain sections? YES
- Have the dimensions of section e) of the law been excluded? NO, only his sanction has been postponed.
- Do the dimensions apply to the other sanctionable sections? YES, from the point of view of computer auditing.
- How much does it cost a company to apply controls, security procedures and policies to meet the dimensions? Between 2 and 3 months, depending on the experience with our clients.
- Should I wait to start the audit? NO.