The application of tax sanctions in the framework of the tax control procedure: affectation to the right of defense of taxpayers

Abstract

The Public Administration has powers that must be used in order to achieve the objective of protecting the general interest and always guaranteeing the fundamental rights of administered subjects. Within these powers we find the power to sanction, expression of the ius puniendi, that will be activated to the commission of administrative infractions. The sanctioning power requires to be exercised within the framework of a legal procedure that provides to administered subjects sufficient defense guarantees to deal with the imposition of a sanction.
However, the current tax regulations deviate from the above-mentioned reasoning: the imposition of tax penalties on the taxpayers takes place within the framework of the supervision procedure. That is to say, the activity of supervision of the Tax Administration will conclude not only with the “Resolución de Determinación”, but also with a “Resolución de Multa”.
This regulation is the result of an obvious confusion between the power to supervise and the power to sanction of the Administration, whose actions need to be properly separated. This situation also seriously affects the right of defense of taxpayers, who will not be able to defend themselves adequately against the imposition of a tax penalty.