DEFENCE AGAINST FINES FOR NON-COMPLIANCE WITH THE ‘SPECIAL CONTRIBUTION PROVIDED FOR IN THE LPPSS’
Elina Pou Ruan
Senior Partner
I. Current situation
Many companies and de facto companies have found on their tax obligations portal, fines for “omission” of filing the electronic return corresponding to the special contribution established in the Social Security Pension Protection Law (LPPSS), under the presumption that all of them pay wages and salaries or all carry out “economic activities”.
II. Our opinion
Sanction Resolutions that impose fines on legal entities or de facto companies that (i) are inactive, (ii) do not make payments for salaries, wages or bonuses of a non-salary nature, or (iii) do not carry out economic activities, are absolutely null and void, as they are administrative acts based on false assumptions of fact and law.
Since the taxable event of the tax is not configured in these cases, the entity is not considered a taxpayer and, therefore, lacks the formal obligation to file informative returns.
On the other hand, the interpretation held by certain officials and advisors, according to which companies without workers under a relationship of dependency must register one in a “fictitious” way to pay the corresponding special contribution, lacks any legal basis and has not been communicated through any official means. On the contrary, such conduct involves the presentation of false information.
Regarding the amount of the aforementioned fines, set at 1,000 Exchange Rates of the Highest Value Currency (TCMMV) – whose current value is equivalent to the euro published by the Central Bank of Venezuela – we consider that their amount is illegal. This amount exceeds the maximum limit established in the Organic Tax Code, which provides for penalties of 100, 150, 200 or 300 TCMMV, depending on the nature of the crime and the status of Special Taxpayer of the alleged offender.
In some cases, the fines imposed do not cover the entire periods since the special contribution became payable in June 2024. Therefore, it cannot be ruled out that SENIAT will impose additional sanctions on entities that already have fines on the portal.
For the foregoing, those entities that do not qualify as taxpayers of this special contribution, must evaluate the convenience of challenging the fines that have already been imposed on them, since, in addition to being subject to additional sanctions, they would have to pay the tax for the “omitted” monthly periods and would have to start paying what would correspond to at least one worker. currently equivalent to 9% of the “indexed comprehensive minimum income”, equivalent to $160, which is derived from presidential speeches and Decree No. 4805 of May 1, 2023.
III. Defense Alternatives
1. Filing of a Hierarchical Appeal or a Contentious Tax Appeal
On the basis of the defect of false assumption, the Fine Resolutions may be challenged by means of a hierarchical appeal before SENIAT or a contentious tax appeal before the Superior Courts.
The deadline for appeal is 25 days, working days in the case of a hierarchical appeal, and for dispatch of the Document Reception and Distribution Unit of the Superior Courts, in the case of a contentious tax appeal.
The deadlines for filing the aforementioned appeals begin to elapse on the day following the day on which the Resolutions are validly notified , that is, when the legal representatives of companies or de facto companies are notified personally, when they are notified to an adult at their domicile, when it is done by post or when it is done by email, The latter notifications require proof of receipt of the emails.
Notwithstanding the indications regarding notifications by email, we recommend periodically monitoring the email addresses reported to the RIF, since SENIAT could request the appearance to serve the fines. Likewise, there is the option of assisting the taxpayer’s Regional Management in order to be notified of the Resolutions, an initiative that they must take as soon as they have made a decision regarding the payment or challenge of the fines.
Although it is true that, alternatively, it is possible to try a contentious tax appeal, the amount of the fines may be unattractive compared to the cost of a judicial appeal, so we recommend trying the Hierarchical Appeal route along with the necessary evidence to demonstrate inactivity, the payment of professional fees, the dismissal of the last of the workers or the type of non-economic activity.
As a final comment, we note that, even though there is no guarantee of the outcome of a hierarchical appeal, we consider that the accumulation of resources that SENIAT has begun to receive could lead to the annulment of the fines.
At LEGA, we are available to analyze in depth the particular situation of each legal person or de facto company, in order to advise them on the best defense strategies against fines imposed by SENIAT.
Contacts:
LEĜA Abogados
infolaw@lega.law
+58 (212) 277.22.00
www.lega.law
Elina Pou Ruan
epou@lega.law
+58 (0212) 277.22.00
Jesús Castillo
jcastillo@lega.law
+58 (0212) 277.22.00
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