By means of Law 11/2021, of July 9, 21, known in abbreviated form as «of measures for the prevention and fight against tax fraud», a new letter j) is added to Article 29. 2 of the General Tax Law (LGT) a new letter j), which establishes the obligation, for producers, traders and users, that the computer or electronic systems and programs that support the accounting, invoicing or management processes of those who carry out economic activities, guarantee the integrity, conservation, accessibility, legibility, traceability and inalterability (ICALTI) of the records, without interpolations, omissions or alterations of which there is no due notation in the systems themselves.
Furthermore, in accordance with aforementioned regulation, a specific sanctioning regime is established in article 201 bis of the Law 11/2021, derived from the mere production of these systems or programs, or the ownership of that kind of systems without the appropriate certification.
The purpose of this precept is multiple. In addition to preventing the production and possession of computer programs and systems that allow the manipulation of accounting and management data, as considered in the explanatory memorandum of Law 11/2021, others of a very different nature are associated with it, such as, for example, giving a notable boost to the modernization and digitalization of the Spanish business environment and, especially SMEs, micro-enterprises and the self-employed, while promoting tax compliance and the fight against fraud and, at the same time, ensuring a simple, cheap, secure and efficient connection between citizens and the Administration in digitalized environments.
Different countries have adopted similar solutions. These initiatives are in line with the recommendations made by international institutions such as the OECD. Thus, strict regulations and techniques have been implemented, which have been evolving in parallel with technological progress for almost forty years, seeking different objectives and control and security measures with the main purpose of making fraud more difficult through the use of computerized means that hide or forge information on invoices issued and facilitate the verification of data that, due to their digital nature, are volatile and easily manipulated in ways that are very difficult to detect.
The new Article 29.2.j) of the General Tax Law provides that future regulations may define technical specifications to be met by these computer systems, as well as the need for them to be duly certified by external auditors and the use of standard formats for their readability. In this sense, a draft Royal Decree has been published , which the requirements to be adopted by the computer or electronic systems and programs that support the invoicing processes of businessmen and professionals, and the standardization of formats of the invoicing records.
In general terms, the draft Regulation leaves taxpayers, developers and marketers freedom to implement the computerized invoicing systems, provided that they comply with a series of requirements that guarantee the principles of integrity, conservation, accessibility, legibility, traceability and inalterability (ICALTI) and established by the GTL and the Regulation itself, and which must be developed by ministerial order. This compliance is guaranteed by means of a responsible statement that the computer system complies with the provisions of the GTL, the Regulation and the development specifications. On the other hand, taxpayers who meet the requirements established by ministerial order may also use, where appropriate, a free computer application developed by the Tax Administration.
It should be noted that, in other countries, in order to avoid the existence of what is known as dual-use software, the use of certain software or hardware elements imposed or certified by the tax authority or by third parties or the obligation in certain cases of issuing electronic invoicing, with automatic delivery of copies of invoices to the Tax Administration, is made compulsory.
The published draft Regulation establishes that for each invoice a registration -and, if applicable, cancellation- record must be automatically generated in the computer system, containing some of the data of the invoice to which it refers, in accordance with the Regulation addressing invoicing obligations, approved by Royal Decree 1619/2012. Elements that guarantee that the principles set forth in the GTL are complied with must also be incorporated into the record, such as the fingerprint or «hash» of the previous record and the time at which the invoicing record is generated. The record must also be electronically signed.
The Regulation foresees that taxpayers may voluntarily send to the Tax Agency by electronic means all the invoicing records generated by such systems. The computer systems that send the invoicing records are considered -in the draft Regulation- as «verifiable invoice issuing systems» or «VERIFACTU systems». These VERIFACTU systems have specific characteristics that determine, by their very existence, that they meet by definition the requirements of integrity, unalterability, traceability, accessibility, legibility and conservation (ICALTI). Invoicing records will not need to be signed electronically either.
Said draft Royal Decree also establishes a modification of the Invoicing Regulation, by incorporating in its wording that invoices, whether simplified or not, issued by the computerized invoicing systems referred to in the Regulation, must include a graphic representation of certain data of the invoice, by means of a «QR» code. The incorporation of the «QR» code in the invoice is intended to facilitate the possibility that the invoice recipient can voluntarily provide, using an appropriate device capable of reading the code and transmitting and receiving data, certain information to the Tax Agency, by capturing the «QR» code with the device.
In short, the approval and application of the Regulation will allow, by means of these computer or electronic systems and programs that support the invoicing processes of businessmen and professionals, in the medium term, a significant saving in tax compliance costs; at the same time that the corporate responsibility of the producers, manufacturers and developers of these systems and programs that issue the declarations of responsibility is reinforced.