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Connecting factors in the INCOME TAX (Income Tax)

From the LISLR 1999, although effective for fiscal 2001 in that specific area, was granted a new treatment the connecting factors to the adoption of the so-called Global Income. By connecting factors can understand the criterion of a political, social or economic, selected by being endowed with powers of taxation, in this case the Republic, under which, that beyond the mere exercise of sovereignty which is vested with the exercise, to be justified and legitimate birth a legal relationship between him-tax and taxable.

connection factors are classified as personal or subjective and objective territorial or source.

personal or subjective factors, justify the exercise of power steering tax to a particular subject of law, by the relationship it has with the state, by virtue of his domicile, residence or nationality, regardless of where you configure the taxable event.

By contrast, the connecting factor of the source object or territory, based on recognition by the state's birth-tax legal obligation on certain subjects, for the sole reason set within its territory the event the tax in question in the case of Income Tax, of that repute which located the source or cause of enrichment taxed, all in accordance with relevant domestic legislation.

between objective and subjective factors in the strict sense, there is a third factor in connecting to their importance and prevalence, treatment deserves autonomous which is called a permanent establishment (PE). Under this factor, there remains exclusively the charge in the state of the source, in which there is an EP by which income is generated on behalf of a resident of another state.

According to Article 1 of the four LISLR that have been enacted since 1999 to date, the connecting factors have received the following treatment:

• It adopts the principle of global income, as regards natural or legal persons domiciled in the country. These pay Income Tax from any source, regardless of its source. The subjective factor of the internal connection is adopted by the legislature, coexisting with territoriality.

• In the case of natural persons and legal entities not domiciled, adopting the real connecting factor or objective territoriality, resulting taxable income solely as a source or cause to happen in the country. This applies in cases where the taxpayer has no fixed base (BF) or EP.

• If it is a natural or legal person not domiciled, but BF and EP in the country, those will have to pay taxes only on income or foreign source attributable to that BF or EP.

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Temptation Municipal Administrations

Referring to the measures currently used by the Municipal Tax Administration for the assessment and collection of Tax on Economic Activities (IAE), national doctrine covers subjects such as: TAX MEASURES expropriatory, within which it highlight " The Value of transactions as VAT base, a temptation Municipal Administrations," that I bring it up, as on many occasions I reported that some of them require not only the VAT returns when a taxpayer makes its income tax return, but use it as a tax base for economic activities directly, in spite of charges that are treated different .

regard is must also highlight the marked difference in the territory of both taxes. VAT is a tax; i) indirect consumption, ii) multistage structure, iii) non-cumulative and iv) governed by the principle of neutrality. Indirect it is levied on total value of the transaction, but does not detect the taxpayer's economic capacity and takes no account of their subjective or economic conditions; is pluirifásico suspicion because all phases of the economic process and is intended to tax on a non-cumulative value that is added in each of them through the clash between debits and credits and also mandates the transfer of tax paid at each stage, and is of the essence of neutrality in the treatment of all economic transactions, so including in principle not only operations, but all fees paid by consumers or purchasers of goods and services, concept Price, remuneration and fees, with exceptions provided for by law.

Instead, the IAE has a different nature, it is a tribute today has characteristics of a direct tax, and that its regulation takes into account the subjective conditions of the taxpayers through socioeconomic standards, this is usually the various codes that are classified business ( by the way, I invite you to review the new appraisals of their activities in the new ordinance this tribute) ; no multistage structure, not intended taxing only the value added at each stage, has no compulsory translation expresses the taxes paid by the taxpayer in each phase, and allows the deduction of taxes paid in the previous phase of the marketing chain, lacks neutrality and universal VAT, it is only levied on industrial, trade and services (commercial in nature), with different tax rates and numerous exclusions in the tax base (Verbigracia: Sale of Fixed Assets).

SANTOS Gabriela RUAN, notes that the indirect nature of VAT and translational character and bankable permit the view that the taxpayer hammered by the charge can pass it and move so the financial burden of the tax burden to taxpayers and consumers that follow in the chain, thus being undermined economic effects inherent in the tax burden. While in the IAE, the incidence of tax the taxpayer would focus on hammered, who could not pass on the tax and deduct the taxes paid by its suppliers, why would undoubtedly effective and addressed to the taxpayer's economic assessment.

In sum, in spite of the temptation of Administration Municipal IAE used as the basis of VAT returns, they are not per se , the ideal instrument for the determination of the tax, which is why I urge you to review the warrant in accordance with the Organic Law of Power Effective public for a correct determination of tax.

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RESPONSIBILITY SOCIAL IN THE FIELD UNDER NATIONAL FREIGHT

According to Colombian Mauricio Plazas lawyer "... can not examined the ratings, the economic, legal status or the basics of taxes and spending without first exhausting the fundamental issue of its ideological underpinnings. A vision of property that disregards its correlation with the purposes of state becomes incomplete and relative and therefore essentially transient . "

In pursuit of this ideological support for our case The Constitution of the Republic is, without doubt, the key instrument. This, the matter qualifies DEMOCRATIC AND SOCIAL STATUS AS OF LAW AND JUSTICE. Accordingly, the state shall protect the welfare of Venezuelans, creating conditions for social and spiritual development, ensuring equal opportunities for all citizens to freely develop their personality, direct his destiny, enjoy human rights and pursue happiness.

The Preamble to the Constitution states that text, "The principles of social solidarity and the common good leading to the establishment of the welfare state, under the rule of the constitution and the law making, then, under the rule of law. "

The so-called Rule of Law and Justice, is not unique to the public authorities, BUT SO IS THE PRIVATE SECTOR. Sample of the above statement are Articles 82, 87, 103, 133 and 135 of the Constitution, in housing, employment and educational.

According Plazas, "... the concept of duty must be to dispense with the traditional reference to the fiscal target and, instead, involves, in broad terms, the purposes of state . Thus, it is possible to understand the genre tribute both taxes primarily as essentially non-tax tax. "

Under modern concepts of taxation, and particularly in light of how it was conceived the Venezuelan State, there's no doubt about the possibility that there to innovate in this area. Such has been the case, in our opinion, contributions such as those provided in the laws of Science, Technology and Innovation; Against Illicit Traffic and Consumption of Narcotic and Psychotropic on Housing Services and Habitat; Contracts Public, Fisheries and Aquaculture; Responsibility in Radio and Television Management and Technology and Socio-Natural Hazard Fire & Fire.

These tax statements that go beyond orthodoxy in this field, until recently prevailed in the country, which over the years has led to its recognition as such by of public authorities, despite their initial resistance.

The creation of that type of contribution, has been accompanied by other measures, that while the doctrine still dare not qualify within the world of taxation, could become so. It is, for example, the provisions of the Organic Law of Prevention, Conditions and Working Environment (LOPCYMAT), the Food Act (LA) and in Law for Persons with Disabilities (LPD).

taxation, as any human creation is bound to evolve, but such progress can not derail the gains achieved by scrubbing that over time, is required to register coexistence human. As John says Carmina Change is not necessarily expression of progress, which is only achieved when it is actually already conquered refined and improved. "

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TAX SYSTEM TO ENJOY FREE PORT OF TAX BENEFIT

In some cases, the Tax Administration has considered taxable to the tax on luxury goods and wholesale sales (today: Value Added Tax), sales to taxpayers in the Free Port as the Nueva Esparta state, on the grounds that the taxable event occurred in the mainland and not in that special customs territory not subject to tax, the above led to a controversy, recently decided by our courts.

Article 14, paragraph 6 of the Tax Law and luxury wholesaler of 1994 (standard treated in the Supreme Court ruling / SPA N ° 04,581 of June 30, 2005, originally part of the case met ) provides the subject with no such tax from sales made in those areas or sections of the national customs territory under special regime (now exempt under the Law on Value Added Tax, 2007, Article 17, paragraph 10).

For: CA Tabacalera Nacional, the Political-Administrative Chamber of the Supreme Court of Justice ruling issued and registered under No. 00816 of August 3, 2010, said: "(...) questioned even though the goods are produced on the mainland, will verify whether the event for the tax liability resulting from the tax on luxury goods and wholesale sales, to be taxed to them with the aforementioned tribute, despite being designed to trade in a territory not subject to the tax in question, would implicit differential treatment to the detriment of domestic producers, since such domestic goods would be competing at a disadvantage compared to the same or similar foreign products marketed in the State of Nueva Esparta which does not contain the fee or tax amount added to its value, would be more economic for the final consumer, which obviously would choose to diminish domestic products, this combined with that would thereby invalidating the purpose of tax benefit established by the State in that area of \u200b\u200bland exempted from payment of national taxes (...). "

For these reasons, the Board judged that the interpretation should be given to non-taxable event covered in paragraph 6 of Article 14 of the Tax Law and luxury wholesaler of 1994 for sales goods produced on the mainland for a free port, is that such sales should be treated LIKE TO PROVIDE BY LAW THAT EXPORT SALES MOVABLE and the provision of services in accordance with Article 25 eiusdem, ie taxed at a tax rate of zero percent (0%), understood in this way, excluding tax not only the facts embodied in the free port territory but those tested on land but which have the destination of the Free Port of Nueva Esparta State, except that it is not a system of taxation in the destination leading to the recovery of output tax, given that special in that customs territory sales and services are not subject to that charge.

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INFLATION ADJUSTMENT TO SHAREHOLDERS UPON INITIAL NEGATIVE

Regarding fiscal inflation adjustment controversy has arisen regarding the scope of Article 178 of the Act, Income Tax, as to whether or not to fit the assets at beginning of year, when it is negative. The above argument comes from the difference that records that rule with respect to its equivalent in the 1999 Act, which expressly excluded from this adjustment, negative equity, exclusion is that the disappearance in the current rule, occurs in doubt comment , as if to that measure, it was intended simply to accommodate the adjustment or otherwise, let him continue to be inadmissible.

In our view, the silence of the rule must be understood in the sense that the inflation adjustment is appropriate, even in those cases where the assets at beginning of year is negative.

regard, the Tax Administration (SENIAT) has formulated a series of objections, in arguing that the setting, in this scenario, it is appropriate, not having yet informed position.

While this setting can be seen by some as a fiction that goes against the taxpayer's ability to pay, why should not be, is no less true that, for others, most passive equity positions, which make equity becomes negative, are products the use of the inflation and higher debt management.
Other more complex cases arise when when calculating the estate tax at the beginning, the process of exclusion of unsupported accounts such as accounts receivable from shareholders, make the positive in negative equity, or otherwise, where a negative equity resulting from the process of inclusions, such as the ending balances of the provisions, it becomes a positive equity.

tax inflation adjustment is based on a procedure for changing figures denominated in a currency (Bolivars historical) on figures denominated in another currency (Current Bolivars) In this case, using the annual change mechanism Index of Consumer Prices (INPC), making it an integral restatement or adjustment integral, so that would suggest that all items should be adjusted for inflation, using the same economic and tax base (INPC).

The inflation adjustment is not a mechanism to tax capital, is an upgrade path, provided that in the end what is taxable is the taxpayer's taxable income.

The decision to perform or not the setting, undoubtedly affects the determination of a higher or lower net taxable income and thus more or less tax payable which entails therefore a risk of an act which according to the position adopted may or may not coincide with the position of the Tax Administration and the sanctions resulting from the implementation of the Tax Code.