LEGAL, TAX AND EXTRAORDINARY PERSONAL MEASURES ADOPTED BY THE GOVERNMENT ON 17 MARCH 2020 TO PALLIATE THE EFFECTS OF CORANAVIRUS (COVID-19)

1.      PURPOSE OF THE DOCUMENT

We issue a new extraordinary note to inform all our clients firsthand about the measures that the Government of Spain has taken to palliate the coronavirus crisis, published on 18 March 2020. These measures attend to business, labor, tax and personal aspects of all Spanish people.

• Support measures for the most vulnerable.
• Labor measures for companies and employees.
• Financial measures that guarantee liquidity.
• Tax measures.
• Mercantile measures.
• Other interesting information.

2.      REGULATION

• Royal Decree-Law 8/2020, of March 17, on EXTRAORDINARY urgent measures to face the economic and social impact of COVID-19.
• Royal Decree 463/2020, of March 14, declaring the state of alarm for the management of the health crisis situation caused by COVID-19

In these Royal Decrees, measures of all kinds are adopted to strengthen the national health system, those that influence telecommunications to organize face-to-face work, those that support vulnerable workers, families and groups, etc. We are going to focus on all economic, fiscal and labor measures that affect all Spanish citizens, companies and the self-employed.

3.      SUPPORT FOR EMPLOYEES, FAMILIES AND VULNERABLE GROUPS

300 million euros has been destinated to reinforce home proximity services; as well as telecare for the elderly is increased and strengthened, and care devices for the homeless, among others, are strengthened.

The supply of water and energy to vulnerable consumers (water, electricity, natural gas) has been guaranteed. The vulnerable consumer is the one defined in Articles 3 and 4 of RD 897/2017, thus extending the social bonus until September 15, 2020.

 

3.1.            Telecommuting

Telecommuting or remote work shall have preferential character, for which organization systems shall be established that allow the activity to be maintained by alternative mechanisms, particularly by teleworking, and the company must adopt the appropriate measures if it is technically and reasonably possible and if the effort of necessary adaptation is provided. These measures should be a priority against the temporary cessation or reduction of activity.

In this sense, teleworking shall be understood as having fulfilled the obligation to carry out the risk assessment, exceptionally, through a self-assessment carried out voluntarily by the worker himself.

3.2.            Adaptation of the working day to take care of relatives.

Employees employed by others who demonstrate care duties with respect to the spouse or domestic partner, as well as with respect to relatives by blood relationship up to the second degree of the worker, shall have the right to access the adaptation of their working day and / or the reduction of it.

The right to adapt the working day may refer to the distribution of working time or to any other aspect of working conditions, the alteration or adjustment of which allows the worker to provide the attention and care that is the object of this article. It may consist of shift change, alteration of hours, flexible hours, split or continuous working hours, change of work center, change of functions, change in the way of providing work, including the provision of remote work, or any other change of conditions that were available in the company or that could be implemented in a reasonable and proportionate manner, taking into account the temporary and exceptional nature of the measures contemplated in this standard, which is limited to the exceptional period of duration of COVID-19.

3.3.            Moratorium on mortgage debt for habitual residence.

This moratory may be applicable, only for habitual residence, for those who are in the following emergency:

1. That the debtor becomes unemployed, or that, being an entrepreneur suffers a substantial loss of his income or sales fall.
2. That the total income of the members of the family unit does not exceed in the month prior to the request for a moratorium:
3. In general, the limit of three times the monthly Multiple Effects Public Income Indicator (hereinafter IPREM).
4. This limit shall be increased by 0.1 times the IPREM for each dependent person over 65 years of age, or for each dependent child in the family unit, or 0.15 times for single-parent families
5. The limit shall be multiplied by 4 or by 5 in other cases, such as members of the family unit with a disability greater than 33 percent, or 65 percent, cerebral palsy or other serious illnesses.
6. That the mortgage payment, plus basic expenses and supplies, is greater than or equal to 35 percent of the net income received by all the members of the family unit.
7. That, as a consequence of the health emergency, the family unit has suffered a significant alteration in its economic circumstances in terms of effort to access the home, in the following terms:

For these purposes it shall be understood:

1. That there has been a significant alteration of the economic circumstances when the effort that represents the mortgage burden on the family income has been multiplied by at least 1.3.
2. That there has been a substantial drop in sales when this drop is at least 40%.
3. By family unit that made up of the debtor, his or her legally separated spouse or registered partner, and the children, regardless of their age, who reside in the home, including those linked by a relationship of guardianship, guardianship or foster care and the non-legally separated spouse or registered domestic partner, residing in the home.

They are exempt from paying the tax for the gradual fee of notarized documents in the form of documented legal acts, the formalization of deeds of contractual novation of mortgage loans and credits that are produced under this RDL.

3.4.            Extraordinary benefit for cessation of activity by COVID-19.

With exceptional character and validity limited to one month, self-employed or self-employed workers, whose activities are suspended, or when their turnover in the month prior to which the benefit is requested is reduced by at least 75% in relation to with the average billing for the previous semester, they shall be entitled to the extraordinary benefit for cessation of regulated activity in this RDL, provided that the following requirements are met:

1. Be affiliated and registered, on the date of declaration of the state of alarm (March 12), in the Special Regime of Social Security for Self-Employed Workers, or where appropriate, in the Special Regime for Sea Workers.
2. In the event that its activity is not directly suspended by virtue of the provisions of Royal Decree 463/2020, of March 14, prove the reduction in its turnover by at least 75 percent, in relation to with the one carried out in the previous semester.
3. Be up-to-date in the payment of contributions to Social Security. Notwithstanding, if on the date of the suspension of the activity or the reduction in billing this requirement is not fulfilled, the managing body shall invite the self-employed worker to pay, within the non-extendable period of thirty calendar days, the due contributions. The regularization of the overdraft shall produce full effects for the acquisition of the right to protection.

The amount of the benefit shall be 70% of the contribution base and shall be for a month, extending, where appropriate, until the last day of the month in which the alarm state ends, in the event that it is extended and have a duration of more than one month. The time of their perception shall be understood as quoted. Being this perception incompatible with any other of the social security.

3.5.            Suspension of portability and return of products.

While the alarm status is in force, extraordinary commercial campaigns for the hiring of electronic communications services that require number portability shall not be carried out by electronic communication service providers, as it may increase the need for users to move physically to centers of physical attention to clients or to carry out physical interventions in the domiciles of clients to maintain continuity in services.

Likewise, any return of product purchased either in person or online is suspended. The calculation of deadlines shall resume when the alarm status is no longer in force.

4.      LABOUR MEASURES TO FLEXIBLE ERTES TO AVOID LAYOFFS

Contract suspensions and working hours reductions due to direct loss of activity as a consequence of COVID-19, including the declaration of the state of alarm, involving any of the following causes:

• Suspension or cancellation of activities.
• Temporary closure of public affluence premises.
• Restrictions on public transport and, in general, on the mobility of people and / or goods.
• Lack of supplies that seriously impede the continued development of the activity.
• Urgent and extraordinary situations due to the contagion of the workforce, or the adoption of preventive isolation measures decreed by the health authority.

As long as they are duly accredited, they shall be considered as coming from a situation of force majeure.

In these cases, if the company decides to apply the ERTE, it shall be with the following specialties regarding the usual procedure:

1. The procedure shall begin at the request of the company, it shall be accompanied by a report regarding the link of the loss of activity and, where appropriate, the corresponding supporting documentation. The company must communicate its request to the workers and transfer the previous report and the supporting documentation, if any, to their representation.
2. The existence of force majeure, as a motivating cause of suspension of contracts or reduction of working hours, must be verified by the labor authority, regardless of the number of workers affected.
3. The resolution of the labor authority shall be dictated within a period of five days from the request, following a report, where appropriate, of the Labor and Social Security Inspection and must be limited to verifying the existence, when appropriate, of force majeure alleged by the company, corresponding to it, the decision on the application of measures for suspension of contracts or reduction of working hours, which shall take effect from the date of the act causing the force majeure.
4. The report of the Labor and Social Security Inspection, whose request shall be optional for the labor authority, will be evacuated within the non-extendable period of five days.

4.1.            ERTE for economic, technical, organizational or production reasons

In these cases, the specialties with respect to the usual procedure shall be the following:

41. In the event that there is no legal representation of the workers, the representative commission of these for the negotiation of the consultation period shall be made up of the most representative and representative unions of the sector to which the company belongs and with legitimacy to be part of the negotiating commission of the collective agreement of application. The commission shall be made up of one person for each of the unions that meet these requirements, making decisions by the corresponding representative majorities. If this representation is not established, the commission shall be made up of three workers from the company itself, elected in accordance with the provisions of article 41.4 of the Workers Statute.

In any of the above cases, the representative commission must be constituted within the non-extendable period of 5 days.

1. The period of consultations between the company and the representation of the workers or the representative commission foreseen in the previous point should not exceed the maximum period of seven days.
2. The report of the Labor and Social Security Inspection, whose request shall be optional for the labor authority, shall be evacuated within the non-extendable period of seven days.

In all these cases, the company shall be exempt from the payment of the business contribution, as well as the one related to quotas for joint collection, while the period of suspension of contracts or reduction of working hours lasts, when on February 29, the company had less than 50 workers in high status, if it had more the exemption reaches 75% of business contributions. And all without effect for the worker.

We always recommend hiring expert attorneys regarding ERTE.

5.      FIANCIAL AND LIQUIDITY GUARANTEE MEASURES

The net debt limit foreseen for the Official Credit Institute (ICO) in the National Budget Law has been increased by 10,000 million euros, in order to provide additional liquidity to companies, especially PYMES and the self-employed. This shall be carried out through the ICO Lines of financing through the intermediation of financial institutions both in the short and medium and long term and in accordance with their direct financing policy for larger companies.

The ICO shall adopt the necessary measures, through its managing bodies, to flexible and expand the available financing and improve access to credit for companies, preserving the necessary financial balance provided in its Bylaws.

In general lines, credit lines and facilities to access loans through financial institutions are made available to companies to alleviate the lack of liquidity that shall occur in the coming months as a result of COVID-19, always having to demonstrate the difficulties according to their balance sheets, the drop in sales and the decrease in the net amount of the turnover.

Companies in bankruptcy or pre-bankruptcy are expressly excluded, as well as companies with defaults with companies in the Public Sector or debts with the Administration, registered before December 31, 2019.

All extraordinary measures in the labor sphere provided for in this RDL shall be subject to the company’s commitment to maintain employment for a period of six months from the date of resumption of activity. This measure, which is included in the Sixth Additional Provision (Safeguarding of employment), may be grounds for annulment of the ERTE and therefore subsequently compel companies to list what is not listed.

Neither may the specialties of this rule be applied in ERTES initiated or communicated before its entry into force and based on causes set forth in the RDL.

 

 

6.      TAX MEASURES

6.1.            Suspension of the time limits in the tax area

First. The terms of payment of the tax debt for debts resulting from liquidations practiced by the Administration[1] provided for in sections 2 and 5 of article 62 of Law 58/2003, of December 17, General Tax, the maturities of the terms and fractions of the deferment and fractionation agreements granted, the terms related to the development of auctions and the adjudication of goods (of articles 104.2 and 104 bis of the General Collection Regulation), and the terms to meet the requirements, seizure proceedings and requests for information with tax significance, to make allegations before acts of opening of said procedure or hearing, dictated in procedures of application of taxes, sanctions or declaration of nullity, return of undue income, rectification of material errors and revocation, which do not have concluded upon the entry into force of this royal decree-law, they shall be extended until 30 April 2020.

Additionally, within the administrative procedure of “apremio”, guarantees that fall on real estate shall not be executed from the entry into force of this royal decree-law and until 30 April 2020.

Second. The terms provided in sections 2 and 5 of article 62 of the General Tax Law 58/2003, of December 17, the expiration of the terms and fractions of the deferment and fractionation agreements granted, as well as the terms related to the development of auctions and adjudication of goods referred to in articles 104.2 and 104 bis of the General Collection Regulation, approved by Royal Decree 939/2005, of July 29, in addition to that established to meet the requirements, embargo proceedings, requests for information or acts of opening of the process of allegations or hearing that are communicated as of the entry into force of this measure extend until 20 May 2020, unless the one granted by the general rule is higher, in which In this case it shall be applicable.

Third. If the taxpayer, however, the possibility of availing himself of the extension of the terms of the previous sections or without making an express reservation to that right, responds to the request or request for information with tax significance or submits his allegations, the Procedure shall be considered evacuated.

Forth. The provisions of the preceding sections shall be understood without prejudice to the specialties provided by the customs regulations regarding deadlines for making claims and meeting requirements.

Fifth. The period from the entry into force of this royal decree-law until April 30, 2020 shall not count for the purposes of the maximum duration of the procedures for the application of taxes, penalties and review processed by the Tax Revenue , although during said period the Administration may promote, order and carry out the essential procedures.

Sixth. The period referred to in the previous section shall not count for the purposes of the periods established in article 66 LGT (Prescription), nor for the purposes of the expiration periods.

Seventh. For the sole purpose of calculating the periods provided for in article 66 LGT, in the appeal for reversal and in the economic-administrative procedures, the resolutions that put an end to them shall be understood to be notified when an attempt to notify the resolution between the entry into force of this royal decree-law and 30 April 2020.

The term to file economic-administrative appeals or claims against tax acts, as well as to resort administratively to the resolutions issued in the economic-administrative procedures, shall not start until the end of said period, or until notification has been made in the terms of the Third Section of Chapter II of Title III of General Tax Law 58/2003, of December 17, if the latter had occurred after that time.

Eighth. The deadlines to meet the requirements and requests for information made by the General Directorate of Cadastre that are in the period of reply to the entry into force of this royal decree-law are extended until 30 April 2020.

The acts of opening of process of allegations or hearing that are communicated from the entry into force of this measure by the General Directorate of Cadastre shall have a term to be attended until 20 May 2020, except that granted by the general rule is higher, in which case this will apply.

If the taxpayer, however, the possibility of availing himself of the extension of the terms of the previous sections or without making an express reservation to that right, responds to the request or request for information with tax significance or submits his allegations, the Procedure.

The period from the entry into force of this royal decree-law and until 30 April 2020 shall not count for the purposes of the maximum duration of the procedures initiated ex officio, although during said period the Administration may promote, order and carry out the essential procedures.

6.2.            Entry into in force

This RDL comes into force the same day of its publication, this is 17 March 2020 and shall remain in force for a month, notwithstanding that, after evaluating the situation, its duration can be extended by the Government by royal decree- law. Notwithstanding the foregoing, those measures provided for in this Royal Decree-Law that have a specified term shall be subject to it.

All these tax regulations shall apply to the procedures whose processing had begun prior to the entry into force of this royal decree-law (March 17).

• Suspension of administrative deadlines

Since the entry into force of this royal decree (March 17), public sector entities may agree on the continuation of those administrative procedures that refer to situations closely related to the facts justifying the state of alarm, or that are indispensable for the protection of the general interest or for the basic operation of the services.

The suspension of the terms and the interruption of the terms referred to shall not be applicable to the administrative procedures in the fields of affiliation, liquidation and Social Security contribution.

• Tax returns

The suspension of the terms and the interruption of the administrative terms referred to shall not be applicable to the tax terms, subject to special regulations, nor shall it affect, in particular, the terms for the presentation of tax returns and self-assessments.

Suspension of limitation periods and expiration: The limitation periods and expiration of any actions and rights shall be suspended during the period of validity of the state of alarm and, where appropriate, of the extensions that are adopted.

7.      MERCANTILE MEASURES

First.      Although the Bylaws had not provided for it, during the alarm period, the sessions of the governing and managing bodies of the associations, of civil and commercial companies, of the governing council of cooperative societies and of the trustees of foundations may be held by videoconference that ensures authenticity and the bilateral or plurilateral connection in real time with the image and sound of the remote assistants. The same rule shall be applied to the delegated committees and to the other mandatory or voluntary committees that it has constituted. The session shall be understood to be held at the domicile of the legal entity.

Second. Although the Bylaws had not provided for it, during the alarm period, the agreements of the governing and managing bodies of associations, civil and commercial companies, the governing council of cooperative societies and the trustees of foundations may be adopted by means of a written vote and without a session whenever the president so decides, and shall be so adopted when requested by at least two of the members of the body. The same rule shall be applied to the delegated committees and to the other mandatory or voluntary committees that it has constituted. The session shall be understood to be held at the registered office. The provisions of article 100 of Royal Decree 1784/1996, of July 19, which approves the Regulations of the Commercial Registry, shall apply to all these agreements, even if they are not mercantile companies.

Third.     The period of three months from the end of the fiscal year for the governing or managing body of a legal entity to formulate the annual, ordinary or abbreviated, individual or consolidated accounts, and, if legally required, the management report , and to formulate the other documents that are legally required by company legislation, it is suspended until the state of alarm ends, resuming again for another three months from that date.

Forth.    In the event that, on the date of declaration of the state of alarm, the governing or administrative body of a legal entity had already prepared the accounts for the previous year, the period for accounting verification of those accounts, if the audit were mandatory, it shall be understood as extended for two months from the end of the alarm state.

Fifth.      The ordinary general meeting to approve the accounts for the previous year will necessarily meet within the three months following the end of the term to prepare the annual accounts.

Sixth.     If the call for the general meeting had been published before the declaration of the state of alarm, but on the day it was held after that declaration, the management body may modify the place and time scheduled for holding the meeting or revoke the call agreement by means of an announcement published at least forty-eight hours in advance on the company’s website and, if the company does not have a website, in the “BOE”. In case of revocation of the call agreement, the administrative body must proceed to a new call within the month following the date on which the state of alarm had ended.

Seventh. The notary who is required to attend a general meeting of shareholders and draw up the minutes of the meeting may use remote means of communication in real time that adequately guarantee the fulfillment of the notarial function.

Eighth.  Even if there is legal or statutory cause, in the capital companies the shareholders shall not be able to exercise the right of separation until the state of alarm ends and the extensions of the same that, where appropriate, are agreed.

Nineth. The reimbursement of contributions to cooperative members that cause withdrawal during the validity of the state of alarm is extended until six months have elapsed from the end of the state of alarm.

Tenth.    In the event that, during the validity of the state of alarm, the term of the company established in the bylaws elapses, the dissolution shall not take place fully until two months after the end of said state.

Eleventh. In the event that, before the declaration of the state of alarm and during the validity of that state, there is a legal or statutory cause for the dissolution of the company, the legal term for the call by the administrative body of the general meeting of shareholders to adopt the dissolution agreement of the company or the agreements that are intended to unnerve the cause, it is suspended until said alarm state ends.

Twelfth. If the legal or statutory cause of dissolution had occurred during the validity of the state of alarm, the administrators shall not be liable for the social debts contracted in that period.

8.      OTHER INTERESTING INFORMATION

DNI: The validity of the national identity document and its electronic signature certificates is extended for one year, until 13 March 2021.

ELECTRONIC CERTIFICATES OF COMPANIES: It may be used, even if its expiration is current or occurs in the coming weeks.

CIRCULATION OF PERSONS AND OPENING OF PREMISES: The opening to the public of retail premises and establishments is suspended, with the exception of retail commercial establishments for food, beverages, products and basic necessities, pharmaceutical establishments, health centers, veterinary centers or clinics, optical and orthopedic products, hygienic products, press and stationery, automotive fuel, tobacconists, technological and telecommunications equipment, pet food, internet commerce, telephone or correspondence, dry cleaners, laundries and the professional exercise of the activity of hairdressing at home. In any case, the activity of any establishment that, in the opinion of the competent authority, may pose a risk of contagion due to the conditions in which it is developing, shall be suspended.

* * * * * * * * *

Ruiz Ballesteros, informs you that this regulation has been tried to summarize in this document, but it is still extensive and subject to future changes as events progress and the Government considers modifications in this regard.

We always recommend getting advice perfectly in each subject to avoid future problems. The commented regulation treats, for example, many financial aid and flexibility of ERTES, but also, in its additional provisions, subjects the entire application to the future fulfillment of job maintenance, so the possibilities must be carefully considered before carrying out any operation.

As usual, we remain at your disposal to clarify any aspect related to the content of this document

[1] These debts are those that are usually notified indicating that the payment will be made until the 20th or until the 5th depending on when the communication has been received.