Recursos administrativos y jurisdiccionales en materia de tributación autonómica

Resumen:Los actos de aplicación de tributos e imposición de sanciones gozan de presunción de legalidad. No obstante, pueden ser objeto de impugnación tanto en vía administrativa como jurisdiccional. En el presente trabajo abordamos el estudio de los recursos ordinarios administrativos y jurisdiccionales en materia de tributación autonómica. Para ello se analizan por separado los tributos cedidos por el Estado a las Comunidades Autónomas y los tributos propios autonómicos, pues la revisión de las actuaciones es dispar en ambos casos.Abstract:This paper analyses the two ways of challenge an administrative act related with the Autonomous Communities tax system. The one made in front of the Tax Administration in the terms provided in the General Tax Law (Law 58/2003, of December 17th) and the jurisdictional in front of the Courts of Justice according to Law 29/1998, of July 13rd. Taking into account these legal regulations, we have developed both methods of review. As it is imperative to present an administrative appeal before going to the Courts of Justice, we have begun with those to then continue studying the review in judicial proceedings. We must differentiate the administrative review against an act of application of taxes related with a transferred tax (which is a tax created by the State but whose revenues are given total or partial to the Autonomous Communities) from those related with taxes directly created by an Autonomous Community. The administrative review of the state taxes assigned to the Autonomous Communities can be developed in just one phase by an economic administrative claim before Regional Economic Administrative Tribunal (TEAR) or Local Economic Administrative Tribunal (TEAL). Nevertheless, it also can take place in two stages by a voluntary appeal in front of the same tax authority that issued the act and a subsequent economic administrative claim before TEAR/TEAL or the Central Economic Administrative Tribunal (TEAC). Even in three phases, by a voluntary appeal before the same tax authority that issued the act, an economic-administrative claim in front of TEAR/TEAL and finally an appeal before the TEAC. It only depends on the will of the taxpayer and the amount of the claim. Thus, the tax system displays a wide range of possibilities for the taxpayer, which may follow the path that is most positive to their interests. We have studied all these chances. However, the court proceeding will be always opened just by going through a single administrative instance, which will depend on the amount of the administrative act. There are three possibilities. The first one, when it is less than 6,000 euros, the claim is before the TEAR/TEAL by an abbreviated procedure. The second, if it does not exceed 150,000 euros, it is also before the TEAR/TEAL but by the general procedure. The third one, if these figures are passed or the amount is undetermined, it can be directly before the TEAC by the general procedure. As we have said, Autonomous Communities can also approve their own taxes. The review of an act of application of taxes related with these is done in front of their own authorities and not, as in transferred taxes, before the state institutions (TEAR/TEAL/TEAC). Each Autonomous Community has its own entity, which means there are fifteen different. Nevertheless, the procedure is practically the same. We pay particular attention to all these issues in our paper. When the administrative review has been exhausted, the taxpayer can urge a judicial review, which take place before the Administrative Court, the High Court of Justice and the Supreme Court. The competence is given by the nature of the tax (transferred or autonomous own tax) and the economic administrative institution that had issued the administrative resolution (TEAR/TEAL, TEAC, Autonomous Communities institutions). In general, the act of application of a transferred tax and the act of application of an Autonomous Community own tax must been firstly appeal in front of the same Court of Justice: the High Court of Justice. Meanwhile the appeal in cassation take place in front of different Courts of Justice: related with transferred taxes ought to be before the Supreme Court whereas the cassation related with an autonomous own tax is in front a special Chamber of the High Court of Justice. We have analysed the contentious administrative procedure and the cassation appeal. We have faced all these review proceedings and we have the feeling of being in front of an extreme complexity system stablished with the intention of avoiding appeals against administrative tax acts as much as possible. Undoubtedly, full range of factors contribute to that reality that requires of an important knowledge of the subject. Besides the duplicity of review paths, the administrative first and the jurisdictional afterwards, it is necessary to add a variety of rules that multiply the institutions, the appeals or the claims, giving rise to a confusing panorama to the interests of the administered.