Tax Subjects: Active, Taxpayer, Substitute, and Solidarity
Active Subject: The active subject of a tax is the public entity that develops the procedures for the application of the tribute. Therefore, we can define the active subject as the “public entity holder of the administrative power for the management and requirement of the tribute.” Since the establishment of taxes can only be made by the holders of the financial power (article 133 CE: the state, the CCAA, and the local corporations), in the cases that other public entities different from these manage a tax, we will have the presence of active subjects gifted with the administrative powers inherent to the tax arrangement, but without financial power for the creation and establishment of taxes. Article 4 LGT refers to this: “the rest of the public entities of public law will be able to require taxes when the law says so.” This last competency is the one that defines an active subject from the tax, with or without financial power, and being or not the holder or the receiver of its performance.
Taxpayer: It is defined in article 36.2 LGT as the passive subject who makes the taxable event. We can assume from this definition that, firstly, the law defines with this term to whom is obliged in face of the Public Estate, specially for having done the taxable event. This way he is bound to the payment of the main tax obligation and the accomplishment of the formal aspects coming out of it, so therefore he is the holder of the economic capacity manifested by the taxable event.
The second point is that the taxpayer and the passive subject, will always be of iure and not of facto. The position of the taxpayer is the exclusive result of the law, so only the one who it designates will have this condition. But not the one who supports effectively or economically this tax burden derived from the taxable event under the different mechanisms of its realisation.
In any case, the subject affected, who will definitely bear the economic consequences of the tribute, is left outside of the main tax obligation, established uniquely between the Administration and the one who is designated by Law as the producer of the taxable event, who will be the contributor.
For this, the affected one won’t bear interests or sanctions of any kind different to the tax liability, as all of them derive from an incidence of the main obligation, to whom the affected is totally alien.
Substitute: According to LGT, it’s the substitute of the taxpayer the passive subject who by law imposition and instead of him, is bound to comply with the main tax obligation, and the formal obligations which arise from it.
This concept has 3 basic notes. First, that the substitute is bound to the accomplishment of the material and the formal obligations that derive from the main obligation. Secondly, that the substitute is placed instead of the taxpayer. The substitute removes the taxpayer from the tax obligation, occupying his place and leaving him as the only subject in relation to the Public Estate. Finally, the position of the substitute has to be within a legal prevision, “from Law imposition”.
Art 36.3 LGT adds a fourth aspect, when it admits that this one will be able to require from the taxpayer the amount of the satisfied obligations, unless Law says on contrary. With this, it won’t be valid the agreements between both to try and prevent compensation, as only the Law can forbid the substitute with the attribution that its conferred to him by art 36 LGT.
The tax system nowadays, and its mechanisms, have cleared the mechanisms of the substitution with the ones of retention, but the substitute still continues to be bound to the Administration to present its reverse and in its case to deposit its corresponding share.
Solidarity: Art 35.6 LGT says: “The concurrence of several required in the same obligation will establish those subjects to be liable to the tax administration to fulfill their whole duties, unless the law establishes a different thing.
The art extends it’s content also to the rest of obligations and tax duties which are part of this solidarity regime. This is because it doesn’t mention the taxable event but the case of an obligation, which is good for the pecuniary duty but can bring doubts about non pecuniary duties and obligations.
The notes of the joint and several obligations of the whole duty, and the immediacy of it’s enforceability by the creditor, can apply. That means, in the tax area, that each of the joint and several required subjects must fully fulfill the tax liability in question, so that the administration can address to any of them demanding, if it’s material obligation, the whole amount.
Being the tribute about various material and formal duties, solidarity not only reaches the obligation derived from the fact it actually generates it, but also other accessory obligations. But not extend to other non-instrumental tax obligations of the obligation in question.
Another characteristic of solidarity is that the acts of any of the joint and several required subjects have effect for the other. The payment of the obligation by one of the required subjects, extinguishes the obligation for them all.
Another aspect of the solidarity regime is that, since it derives from a specific single fact, there’s only one tax liability with a plurality of joint and several required subjects. When only one of the subjects is known, the administration will address to him. Then, if this subject doesn’t ask for the division of the payment, will be required to take care of the whole amount. To ask for the division of the payment, that subject will have to provide the administration the rest of the required subject’s personal data and residence and also, their proportion in it.