The infringement of Art. 194, LGT section 1, consists of unduly requesting refunds derived from the regulations of each tax by means of the omission of relevant data or the inclusion of false data in self-assessments, data communications or requests, without the refunds having been obtained.

The Central Economic-Administrative Court, through its Resolution of 21st May 2021, resolves the question regarding the concurrence of the necessary elements of the tax infringement: the objective element, the typical nature and the subjective element (culpability), as well as its appropriate accreditation in the contested sanctioning agreement.

The Court has ruled on the consideration of the objective element of the infringement provided for in Article 194 of Law 58/2003 and points out that, in the case of a request for a refund classified as improper by the Administration – unlawful conduct that does not cause financial damage to the Treasury -, an aggravated element must be present, such as the omission of relevant data or the inclusion of false data, both requirements similar to concealment conduct on the part of the taxpayer.

In other words, in order for such an improper application to be punishable, it is necessary to declare false data or omit relevant data in the self-assessment, communication or application. Thus, when a refund is unduly requested, but these requirements are not met, the conduct of the taxpayer is not punishable.

By virtue of the above, the Court considers that the inclusion of certain data in, for example, a self-assessment, may or may not be incorrect, but it does not necessarily have to be false data. If the omission of relevant data or the inclusion of false data in the conduct consisting of unduly requesting a refund, which determines the inappropriateness of the refund, is not proven, such conduct will not be punishable.

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Accounting and Tax Specialist