October 20, 2020

A court clarifies who should justify travel and subsistence expenses if there is an inspection | Economy

A court clarifies who should justify travel and subsistence expenses if there is an inspection | Economy



When a worker Perceives your company's allowances for travel expenses, meals and lodging You do not have to pay for these on your income tax return (IRPF). But as some societies abuse this way to pay more to their employees without increasing their tax burden, the Tax Agency Watch these expenses with zeal. Verify that they have actually occurred and that it is effectively related to the work activity. Otherwise, the Treasury considers that it is part of the compensation for which it must be taxed. But if an investigation is opened, is it the company or the worker who spent who has the responsibility to offer evidence? It depends.

For a long time the question has arisen about who has to justify these expenses when the Tax Agency initiates a verification to an employee, because the circumstance exists that, although it is the employee who receives the allowances, the receipts or invoices that justify it They are usually in the hands of the company. The Central Economic Administrative Court (TEAC), the administrative body that clarifies the tax issues, issued a ruling on November 6 in which clarifies some aspects of this long controversy.

The TEAC warns that "there is no regulatory obstacle that prevents the Administration from checking the recipient of remunerations that have been declared as allowances and allowances for travel expenses exempt from tax, in relation to them". José María Salcedo, partner of the Legal Attic office, clarifies: "This means that any worker who has received a diet may suffer a testing in your IRPF. Different question is who has the burden of proof to prove the reality of the diets, and its connection with the work activity.

Burden of proof

The first thing Hacienda checks when it opens an inspection for this question is to analyze if the expenses are related to the activity of the company. Salcedo explains that "this is not a trivial matter, and in most cases, the Treasury obliges workers to pay for these allowances because they have not been able to prove their reality or their suitability for the activity. that said proof corresponded to the company, and not to the worker, these liquidations could be annulled ".

Precisely because of this, the TEAC, clarifies in its resolution what documentation corresponds to contribute respectively, to worker and company, in these cases. The summary of the resolution is that the worker must justify stays and trips when traveling by public transport. And the company has to account for locomotion expenses when the trip is in a private vehicle and the expenses of maintenance.

Private vehicle and maintenance: the company

And that's what the TEAC explains: "The expenses of locomotion by private vehicle use as well as living expenses, they must be accredited by the payer, because it is his responsibility to justify the day and place of the displacement that, together with the reason or reason thereof, are precisely the points that allow to prove that the amounts (euros per kilometer or euros per day) established in the norm are exempt from taxation for obeying labor reasons and development of their economic activity. This is not an obstacle for the recipient to voluntarily provide the justification of the same if he had it. "The same can be applied for parking and toll charges.

Salcedo specifies that the company must justify the veracity of the expenses of locomotion with private vehicle and the expenses of maintenance. And you will have to prove the day and place of the displacement. In addition, the company must justify the reason or reasons for the trips. That is to say, that the paid diets obey to labor reasons and of organization of the activity.

Public transport and accommodation: the worker

On the other hand, the TEAC also maintains that "the locomotion expenses in case of having used a public means of transport, as well as those of stay (with the exception of those corresponding to drivers of goods transport vehicles by road that do not exceed the daily amounts indicated in the standard), they must be justified, in principle, by the employee or perceptor of the allowances, by not assigning the norm the burden of such proof to the paying entity, having been satisfied by it, the supporting documents being issued in its name, and governing, in short, the general criterion on the distribution of the burden of proof of article 105 of the LGT and that It attributes to the taxpayer to prove those facts that favor him. The same could be said for parking or toll charges in the event that a private vehicle had been used. "

Salcedo clarifies that it is the worker who must justify the reality of the expense, but it will always correspond to the company to demonstrate that such expenses credited by the worker, are really due to labor reasons and organization of their economic activity. Therefore, he adds, even if the check is followed against the worker, the Treasury must always require the company, the documentation proving the link and motivation of the trips and stays that have justified the payment of allowances to the worker.

Linking the expense with the company

Another important point clarified by the Administrative Tribunal is who should justify the relevance of travel and the link with business activity. "The accreditation of the linking of these expenses with the economic activity of the paying entity will correspond to the latter, because to it the standard gives the burden of proving the day, place and reason for the displacement, that is, the travel expenses of the employees are due to work reasons and the organization of their economic activity, which is not an obstacle for the recipient to voluntarily provide the justification for such circumstances if he had it ".

"That is to say," Salcedo explains, "if the worker does not justify the reality of the locomotion and stay expenses that we have discussed before, and whose proof corresponds to him, the Treasury may demand taxation for the per diems received." This lawyer insists that if the test is provided, but what is missing is the accreditation of the link and need for such expenses for the activity (which must justify the company), the worker can not be harmed.

And he concludes: "Therefore, to the extent that the worker complies, and proves the reality of the expenses of locomotion and stay, whose evidentiary burden is attributed to him by the TEAC, the Treasury may not force him to pay taxes for the per diems received. The liquidation dictated must be appealed, with many possibilities of being annulled. "

Locomotion expenses: The amounts destined by the company to compensate the expenses of locomotion of the employee or worker who moves outside the factory, workshop, office, or work center, to perform their work in a different place, under the following conditions and amounts, are not taxed. :

  • When the employee or worker uses means of public transport, the amount of the expense that is justified by invoice or equivalent document.
  • In another case, the amount that results from computing 0.19 euros per kilometer traveled, provided that the reality of the displacement is justified, plus the toll and parking expenses that are justified.

Living expenses and stay: The amounts destined by the company to compensate the normal expenses of maintenance and stay in restaurants, hotels and other hotel establishments, accrued for expenses in a municipality different from the place of the habitual work of the recipient and of the one that constitutes his residence, will not be taxed.

The following will be considered as allowances for normal expenses of maintenance and stay in hotels, restaurants and other catering establishments:

When you have spent the night in a municipality other than the usual place of work and that which constitutes the residence of the recipient:

  1. For expenses of stay: the amounts that are justified. In the case of drivers of vehicles dedicated to the transport of goods by road, they will not need justification in terms of their amount the expenses of stay that do not exceed 15 euros a day, if they are produced by displacement within Spanish territory, or 25 euros a day , if they correspond to trips to foreign territory.
  2. For living expenses: Displacement within Spanish territory: 53.34 euros per day maximum. Displacement to foreign territory: 91.35 euros per day maximum.

– When you have not stayed overnight in a municipality other than the usual place of work and of the one that constitutes the residence of the recipient, the following amounts in concept of allowances for living expenses:

  1. Displacement within Spanish territory: 26.67 euros per day maximum. Displacement to foreign territory: 48,08 euros per day maximum.

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