Tuesday, August 16

Everything the Tax Agency uses to know if you live in Spain even if you deny it: from electricity consumption to Instagram

In the summer of 2020, the daily The country published a very long chronicle in which he detailed how Hacienda followed in Shakira’s footsteps for years to redo the singer’s footsteps and check how many days she spent a year in Spain, where she said she did not reside – her address according to her was in Nassau, capital of the Bahamas Islands – and therefore did not pay her taxes … until the Tax Agency rebuilt her life of the last four years to claim the amounts defrauded, between three and seven million euros per year.

Perhaps it was then that many of us consolidated some suspicions or some vague beliefs around the ways that the Tax Agency has to determine almost any aspect of the life of every citizen in order to know if, in this case, they live where they say they have their tax residence. A confrontation in which he has too many ways to win to stand up to it and go well.

Instagram is treacherous

“The Treasury has the authority to collect information from third parties both in Spain and abroad,” he explains. Almudena Medina, director of the tax area at the Ceca Magán law firm. “You can request information from the tax administration of other countries and cross information provided by third parties in your returns.”

In cases like Shakira’s, in which her profession and her high purchasing power force her to travel for many weeks a year and allow her to rest during vacations in exotic places, having this ability to request tax information from other countries is essential. . However, it is also important to have information from local companies, as happened to the Colombian one.

Her client file in her trusted hairdresser, the recording dates of the Mandinga studios or even the information provided by staff from her children’s school, who revealed that it was she who used to take them and pick them up, as well as who attended the meetings of parents, it was decisive. “The Treasury has a huge amount of information and can access much more. It can resort to all kinds of tests, public and private. It has the authority to collect information from third parties both in Spain and abroad,” summarizes Almudena.

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Some of the key information is also technological: phone records, banking information, and social media activity come into play. “The complete list of calls and account movements is usually part of the inspection file. Together with the credit card data, they are usually quite indicative of where the subject is at all times. In any case, to have a strong case , The Treasury needs to have multiple tests that point in the same direction. It is the joint evaluation of the evidence that allows the Treasury to place the subject in one country or another. In any case, what the Treasury will not allow is that the subject do not pay taxes in any country, that is a tax stateless person “, Almudena tells about this use of information linked to technology.

Paying with a card is equivalent to leaving a trace that, if you are defrauding the Treasury, allows it to accurately quantify the days you have been in Spain. And the total sum is growing. Those payments, if they are made in other European countries, also leave breadcrumbs for the Spanish Treasury, since there is a mutual assistance framework to cross this information in order to pursue tax fraud. The government’s plan to phase out cash has a lot to do with this.

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Social media is a testing niche“The lawyer continues. And not only those of the investigated person: also those of other third-party accounts that help to indicate the address of the country of residence of the investigated, which will be more easily located to the extent that it is more famous, and therefore more interest arouses among third parties to highlight their presence in a specific place on a social network. For example, with tweets such as “I have a [persona famosa] to two meters in Puerto Banús “or similar publications.

A “spider web” monitors more than 200,000 open websites to collect information on taxpayers

This practice has been common since 2015, when was published in the BOE a section dedicated to the “digital economy” in which it was explained how the tax administration could obtain information from the Internet to “discover hidden activities or goods subject to illicit trade” and uncover companies “that, under foreign appearance, are actually Spanish companies who use the Internet to try to evade their tax obligations. “

For the networks, they spoke of identifying “patterns of behavior that correspond to fraudulent activities,” and they would rely on a crawler that would index more than 200,000 web pages. With all this information, data would be crossed to find suspicious patterns.

In the case of information obtained from computers, it will be valid in actions carried out in companies, since private homes are legally protected and a judicial authorization would be required. You can go to this extreme, but it takes more bureaucracy and time.

Those photos uploaded by third parties would be considered as “evidence” according to Almudena, but the validity of the origin would have to be proven to verify that they have not been tampered with. “They would be one more element to take into account, but it should be endorsed by other indications or evidence to reinforce its probative nature.”

In the case of celebrities, it may be the case of going to image banks, such as Getty, who has an extensive list of photographs in which he is seen in Barcelona in the case of Shakira, to request all the images of the investigated person labeled with dates and places of the moment of capture. The same as videos broadcast in the media or published on YouTube and the like. A priori, data shared privately will not be analyzable. That’s where private messaging comes in, like WhatsApp.

Then there is the mdodelo 720, a tribute that became mandatory in 2012 to declare assets and rights abroad and that has served in these eight years to detect unjustified capital gains that were followed by claims of the amounts defrauded and their corresponding fines.

“An inspected man left an establishment and hid behind a car when some tax inspectors appeared”

According to sources from the Tax Agency, we also access data and evidence such as electrical consumption (which determine the presence in a home of an investigated person, owned or rented, for a specified time), health care received in national territory, drugs dispensed in pharmacies, or even ITV reviews of vehicles on behalf of the investigated, as well as all the data of relatives of next degree. However, we are told that they cannot give many details “for obvious reasons of not giving information on how we investigate“.

From the Tax Agency they indicate that they cannot give many details about their way of investigating “for obvious reasons”

Also from the Tax Agency they tell us some anecdotes when checking fictitious changes of residence, like that of a citizen who theoretically resided in a foreign country and who was visited at his home in Spain, where he actually lived. When asked for the address where he lives, he took out his ID to read it, since it did not come to his head since he did not actually live there. Visits to these houses are a common practice, as well as visits to nearby neighbors and businesses to inquire about the person being investigated. Many inspections are accompanied by computer technicians to carry out audits in situ.

In another case, another taxpayer was detected in an establishment in a Spanish city, something that is not an indication of anything since he could be there on a trip … except for the fact that when the inspectors identified themselves in that establishment, he left and left. tried to hide behind a car. Alarms activated.

They also recall the case of some inspected who presented train tickets bought years ago (“who keeps them?”, They point out from the AEAT), in order to justify trips to the supposed place of residence from Monday to Friday. In that case, the inspectors could not prove it, but they suspected that they were tickets that were never really used, but bought to constitute evidence for a possible inspection such as the one that ended up receiving.

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183 days and many ways to show that you really live in Spain

A similar case starred in Rafa Nadal in 2012, although without having to leave Spain: their companies were taxed in the Basque Country, where they had a special regime that allowed them to enjoy almost zero taxation, despite the fact that they did not carry out their management or activities in that autonomy or in the Foral Community of Navarra, with similar tax benefits. The Treasury investigated hundreds of companies suspected of being based there but without having any real activity in said communities. Among them, those of Rafa Nadal, who ended up changing their tax address to the Balearic Islands in 2012 after six years and regularizing the amounts defrauded.

It is not even enough for the Treasury to show that they have spent more than 183 days a year outside of Spain: other indicators can make an investigated tax resident consider

Karel Mark Chichon, director of the Gran Canaria Philharmonic Orchestra, is being investigated for the same cause: His law firm maintains that he has his residence fixed in a Baltic country, the Treasury is questioning him because he considers that he lives in Gran Canaria, where he has his main job.

Treasury considers as tax resident in Spain to anyone who spends more than 183 days a year in this country. That is, more than half the year (182.5 days). Too to whoever resides in Spain the main nucleus of their economic activities directly or indirectly, or to those who have residing the spouse not legally separated and the minor children who depend on that person.

One of these causes that go beyond the 183-day rule, that of maintaining the main nucleus or base of its economic activities in Spain, is what caused The Treasury investigated the case of high-income citizens who transferred their residence to Portugal, with a very favorable regime for figures of this type, and that it was not even enough for them to spend more than half the year in the Portuguese country and be residents de facto there by having the base of their businesses in Spain. And in those cases … enter to investigate with all the tools that we have enunciated.


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