Helping a family member financially can result in aa financial penalty that even exceeds the amount lent. The Tax Agency has reinforced its surveillance system on banking operations between individuals with the aim of detecting possible undeclared donationswith fines of between 50% and 150% of the amount for those who do not document them correctly.
This reform is part of the Annual Tax and Customs Control Plan that was published in the Official State Gazette on March 11 and with it, the Treasury began to control more exhaustively. loans between individuals in search of undeclared donations correctly, as he warned Raul Gomezlawyer and collaborator in the program ‘No son Horas’ on “Onda Cero”.
The difference between a private loan and a donation
As the lawyer explains, the issue lies in the difference between loans between individuals and donations. “The difference may seem simple, but from a tax point of view it has enormous implications and Getting this wrong can be catastrophic.“, he warns. The first is a private agreement between two natural personswhether family members or acquaintances, in which no traditional banking or financial entity intervenes and it is understood that it will be returned to its legitimate owner.
Although the bank’s participation is not necessary for this procedure, it is must be formalized correctly to record the movement and the intention to return the money or to its legitimate owner. Therefore, both parties must sign a private contract in which the conditions of said agreement are established, there must be a guarantee and commitment to return, the operation must be communicated to the Tax Agency following the 600 model and the transfer of money must be carried out in a way that leaves records.
On the contrary, a donationion is a voluntary and free delivery of an amount or good to a person or entity, without it having to be returned to the donor. Although it has no cost, “are subject to the Inheritance and Donation Tax that are managed by the autonomous communities and whose fiscal cost can vary greatly depending on the territory and the relationship,” says Raúl Gómez.
If hidden donations are detected, the Treasury will impose economic sanctions
Therefore, when a particular loan has not been documented correctly, The Treasury can understand that it is a donation for which the corresponding taxes have not been paid, and establish a financial penalty. The same occurs when the donor, with the aim of save the payment of the corresponding taxesdeclares as a loan a delivery that will never be returned.
“The Tax Agency does not prohibit, cannot do so, loans between individuals. In fact, they are completely legal and quite common. What it does do is verify that it is a loan“, explains the lawyer in the program. To carry out this investigation, the Treasury will look for the existence of the private contract that had to be carried out before the transfer of money, as well as the existence of a return period and the existence of payments in which it is clear that it is being returned the amount acquired.
Otherwise, the public body may consider that it is a hidden or undeclared donationso the donor must pay the corresponding tax and will receive a financial penalty. These, according to the lawyer, “They can represent between 50 and 150% of the amount left unpaid“and remember that, with the advancement of new technologies and the proliferation of digitalization in banks, detecting these types of cases is easier than ever.
Digitalization favors the control of banking movements for the Tax Agency
Well, although it is not true that the Tax Agency is going to start monitoring all Bizums that exceed 50 euros, it will pay special attention to those transfers that are made without the intention of being returned and have not been declared as loans between individuals. “If those movements generate an increase in assets that is not justified in the income tax return or in the corresponding donation tax, the Treasury can initiate a verification procedure,” he says.
However, this problem will not affect those who document formally and correctly monetary loans between friends or family, as well as those who settle the taxes required for donations. As Raúl Gómez well remembers, “The problem is not helping the children. That is legally perfectly legitimate. The problem is how that help is formalized.“.