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Diets exempt from personal income tax. Obligation to justify: payer or recipient?

On November 6, 2018, the Central Economic-Administrative Court issued a resolution to an extraordinary appeal for the unification of criteria, by which it is determined who has the obligation to justify the per diems received by workers as exempt from personal income tax. That is, who must be the person who accredits or justifies the day, place, reason and reality of the displacement in the case of receiving remuneration exempt from tax because it is considered per diem in accordance with article 9 of the Personal Income Tax Regulation.

Thus, the TEAC establishes the following criteria:

  1. There is no regulatory obstacle that prevents the Administration from verifying the recipient of remunerations that have been declared as per diems and allowances for travel expenses exempt from tax, in relation to them.
  2. The transportation expenses through the use of a private vehicle, as well as the maintenance expenses, must be accredited by the payer, since it is up to him to justify the day and place of the trip which, together with the reason or reason for this, are precisely the extremes that allow us to prove that the amounts (euros per kilometer or euros per day) established in the standard are exempt from taxation because they are due to labor reasons and the development of their economic activity. This is not an obstacle for the recipient to voluntarily provide justification for the same if he had it at his disposal.
  3. Locomotion expenses in the event that a public means of transportation has been used, as well as stay expenses, must be justified, in principle, by the employee or recipient of the allowances, as the rule does not attribute the burden of said proof. to the paying entity, having been satisfied by it, with the supporting documents issued in its name, and governing, ultimately, the general criterion on the distribution of said burden that we explained above and which attributes to the taxpayer the obligation to prove those facts that favor it. The same could be noted for parking or toll costs in the event that a private vehicle had been used.

Notwithstanding the above, the accreditation of the link of these expenses with the economic activity of the paying entity will correspond to the latter, since the norm attributes to it the burden of proving the day, place and reason for the displacement, that is, that Employee travel expenses are due to work reasons and the organization of their economic activity. This is not an obstacle for the recipient to voluntarily provide justification for such circumstances if he had it at his disposal.

In summary:

  • Payer: justification that the credited expenses are actually due to work reasons and the development of the company’s economic activity.
  • Payer: Justification of transportation expenses in the worker’s private vehicle and living expenses.
  • Worker: Justification of transportation expenses in public transport, accommodation expenses and parking and toll expenses.

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