The Official State Bulletin of Wednesday, November 21st, 2012 published the new Law 10/2012 dated November 20th on the regulation of certain taxes within the scope of the Administration of Justice and the National Toxicology and Forensic Science Institute.
This modification of taxes in the realm of justice affects civil jurisdiction, administrative and social law, and abrogates Section 35 of the Law 53/2002, dated December 30th, on tax, administrative and social regulation, which was used to regulate this tax in the civil and administrative jurisdiction.
The mentioned law has been recently revised by the Royal Decree Law 3/2013 published in the Spanish Official State Bulletin dated February 23rd, which modifies this new tax rules within the scope of the Administration of Justice about which we shall refer to in this analysis.
Entry into force
Firstly, the date on which the new Law entered into force was November 22nd, 2012. However, the Ministerial Order governing the procedure to fill in the necessary forms (Form 696) and making the respective payment did not come into force until December 17th, 2012. In response to concerns arising from the application of taxes during the period between November 22nd and December 17th 2012, the instruction 5/2012 dated November 21st from the Secretary General of the Administration of Justice established that in order to give effect to procedural petitions made during this time lapse, proof of payment of the fee would not be required. However, we are aware that some courts have required the parties, so that once the forms are available, they shall proceed to pay the tax under penalty of preclusion of the claim.
In regards to the date of entry into force of the Royal Decree-Law 3/2013, also occurs the following day of its publication in the Official State Bulletin on February 23rd, 2013, however in contrast to the Law 10/2012, the new amounts will be applied from its entry into force, despite the disbursement of the rate will not occur until the publication of the Order of the Minister for Finance Affairs with new forms. From this moment there will be a period of 15 working days to settle all those outstanding taxes.
Scope of application
The fee for the exercise of jurisdictional power shall be applied nationwide and will be equally applicable throughout the national territory, without prejudice of the taxes and other tributes that may exist in the Autonomous Communities in the exercise of their respective financial competencies and the exemptions that we will point out below in the next paragraph.
Taxable events and taxpayers
- The taxable event is the exercise of the jurisdictional power, including the modifications listed below compared with the previous regulation.
- Filing of claims and appeals concerning inheritance, family and marital status.
- Petitions for compulsory insolvency and other legitimated parties, and presentation of the incidental claim in the bankruptcy proceedings.
- Filling of counterclaims.
- Filing of claims in the contentious administrative order.
- Opposition to the execution of judicial titles.
- Filing of payment order procedures (amount>€ 2,000).
- Filing of appeals and judicial review in labour claims.
- With regard to the taxable person, the new rates apply to:
- All corporate and natural persons who do not have access to the right of free legal aid. In this sense, the Royal Decree-Law 3/2013 expands the subjective scope of the beneficiaries of free legal aid, applying the new assumptions retroactively to those beneficiaries of this right who had already paid the fee since the entry into force of the law 10/2012, until the entry into force of this Royal Decree-Law 3/2013.
- Non-profit entities, those companies which are fully or partially exempt from taxes, and small-sized enterprises.
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Taxable base, returns, and further specifications
- The amount of the fee is determined by a fixed amount depending on the procedure, - which has been increased as a result of this new regulation-, and a variable amount, which shall be determined according to the amount claimed in the process, being the type from 0 to €1,000,000 of 0.5%, and the rest to 0.25%, with a maximum rate ranging from 6,000 € to €10,000.
- However, pursuant to the Royal Decree-Law 3/2013, it is stated that the variable rate for individuals shall be 0.1% and a maximum for the variable amount of €2,000.
- For procedures of undetermined amount, they valued at €18,000 claims for the sole purpose of establishing the taxable rate.
- In cases of joinder, the fees shall be estimated according to the amount requested in the claims or the amount requested within the different cases joinder.
- In the contentious procedures relating to traffic fines, in addition to the reduction in variable rates introduced by the Royal Decree-Law 3/2013, it is set 50% on the amount of the penalty as the maximum amount of the fee.
- At the same time, 60% of the amount of the fee shall be the reimbursed in those cases when it is reached an out-of-court solution to the dispute. Besides, 20% of the fee shall be reimbursed when it is agreed a joinder of judicial processes (model 695).
- A 10% reimburse of the judicial activity fee shall also be applied in those cases in which writings have been submitted by telematics means.
- In regards to the issue on whether the condemnation costs includes the obligation to compensate the rates, indeed, the third final provision of the law, gives new wording to Section 241.1 - 7th of the Spanish Code of Civil Procedure, including the rate for the exercise of jurisdictional power, where this is mandatory.
- Likewise in those processes on foreclosure it is applied an exceptional case as a result of the entry into force of the Royal Decree-Law 3/2013, allowing excluding the condemnation costs rates to be paid to the Bank by the holder of the credit, otherwise, by the guarantor.
Forms of presentation and payment of the judicial tax
The payment of the fee must be made by the person responsible pursuant to the provisions established by the Ministry of finance and public administration, and the mentioned payment shall be carried out prior to the presentation of the procedural writing. The proof of payment, duly validated, must be attached to the corresponding procedural writing. In case of failure to provide such proof of payment, the clerk of the Court shall require it, thus, not giving the writing course if that omission is not rectified. In that case, the procedural act shall conclude, continuing or terminating the procedure, as appropriate.
Finally in terms of representation, the barristers and procurators shall be responsible to pay such fees on behalf of the client who shall afford such fees, even when this does not live in Spain. For such purpose, it shall not be necessary for the lawyer to have at his/her disposal the NIF of the client prior to the payment of the fee. In any case, neither the procurator nor the lawyer will have tax liability for the payment of the fee.