The Provincial Prosecutor's Office of Madrid has agreed to file the investigation proceedings opened as a result of the a complaint filed on January 22 by the General Society of Authors and Publishers (SGAE) against some of its partners for a supposed tax infraction with the author's rights and remits the case to the Tax Agency. "The investigative proceedings must be archived when the act is not a crime or lack of sufficient elements to maintain its perpetration," says the Prosecutor's Office, which has sent the report to the Treasury in case a tax violation could arise.
According to the complaint, the legal services of the SGAE they had detected that some of their partners ceded their copyright to an assignee and publisher, who became, therefore, new members of the SGAE after their corresponding registration. Then, these companies signed a management contract with a large publisher for the management, administration and representation of 100% of the copyright.
It is a practice devised at the end of the nineties, in agreement between creators and multinationals, under the umbrella and the endorsement of the SGAE itself, as confirmed by several executives of the entity to EL PAÍS. It was used, above all, for the authors to return, as they received income for the rights generated, the advances they had received from the publishers. However, based on the creation of interposed companies – the display of corporate screens, which make it difficult to track money – the creators managed to evade the IRPF, according to the complaint, something that the prosecution does not consider accredited. "It was used to return the loans and advances that record companies gave to their authors, directly or through their publishers," says a former director. And he explains that each SGAE member was identified with a number, associated with his account and his information. In these cases a second number was created, linked to the original of the artist, but with another account in which the author -as he had income from the exploitation of his work- returned the record to the loan.
For the complaint of SGAE, On the other hand, "under no circumstances was the cession of the copyright of the transferee and publisher to the publishing house, but the contracts were materialized with the creation of two entities without legal personality, new partners of the SGAE, which without However, they operated with the CIF of the publishing house ". Thus, the author then requested the SGAE to prepare invoices issued by the entities without legal personality and not by the transferee and publisher (titular partners of the rights).
This activity, in the opinion of the SGAE, may involve a tax violation for breach of the billing or documentation obligations, which in turn may have criminal significance. Moreover, the entity also suspects invoices with falsified data being issued, since its issuer does not coincide with the true service provider, with the right to receive the corresponding settlements, and that through the billing mode described, it could be trying to hide from the tax administration the true beneficiaries of the settlements for copyright and thus the taxation that may correspond. In spite of everything "only one author is mentioned, who would be carrying out the operations described," the Prosecutor's Office recalls.
Finally, the SGAE states that the facts can be constitutive of a crime of unfair administration, given that some of the members of the Board of Directors of the SGAE are at the same time executives of the managing publishers that signed the administration contracts with the interposed companies and they created entities without legal personality from which to perceive the returns of rights that did not correspond to them, or of crime of frustration in the execution.
In its brief, the Office of the Prosecutor affirms with regard to the alleged commission of the fiscal offense that "the tax declarations submitted by the authors or by the entities that are the transferees of their intellectual property rights do not appear". It even emphasizes that it does not even "state whether the invoices issued in the manner described have been used to hide the identity of the true beneficiary of the copyright settlements and therefore the taxpayer, in order to reduce the taxation that may correspond to them. "or that is specified in said complaint" in what amount could have been committed, where appropriate, the tax offense. "
Regarding the responsibility of the executives of the SGAE that supposedly contributed to the design of a corporate structure through which the invoices corresponding to the liquidation of the author's rights were issued, the prosecution considers that "it is not minimally accredited, either. do not include any of the extremes. "
The complaint was filed under the impulse of the president of the entity, José Ángel Hevia. The board of directors had access to a September 2017 report on the matter, made by José Miguel Fernández Sastrón while he was president, and decided to hire the services of an external lawyers' office (Auren, the same one that represents the interests of AtresMedia , linked to "the wheel" of night music, which investigates justice) to be advised on a possible collusion between the SGAE and publishers in an alleged tax fraud. The president decided to disassociate himself from the legal department of the house for this maneuver.
The presentation of the complaint outraged several executives of the entity, shocked that the SGAE launched a public battle against their own partners, and was one of the factors of rupture of peace that Hevia enjoyed for weeks in the government of the SGAE. Concord flew through the air finally last Thursday: after a hard confrontation, the president insulted the members of the board of directors, before leaving the room, according to this newspaper's sources who attended that meeting. Just before, Hevia forced the vote on a motion of confidence on the general secretary, Carlos Lopez, which was invalidated on his first attempt since the president himself voted twice. In the second round, Hevia's proposal was defeated.