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La Audiencia Provincial de Alicante estima el recurso de apelación presentado por NBA Consulting

by Marina -- |21/06/2022 |0 Comments | Abogado

La Audiencia Provincial de Alicante  en su sentencia anula parcialmente el trabajo realizado fuera de plazo por un Juzgado de Instrucción de Torrevieja . Esto pone de manifiesto la intención de los Tribunales de Justicia  de evitar los retrasos injustificados en los procedimiento penales.

La Audiencia Provincial de Alicante estima el recurso de apelación presentado por NBAConsulting en el marco de un procedimiento de Blanqueo de Capitales.

La Sección nº11 de la Audiencia Provincial de Alicante en su Auto de 26 de mayo de 2022 acaba de estimar el recurso de apelación presentado por la abogada penalista de NBAConsulting, Andrea Aguinaco Alonso, declarando ilegales por extemporáneas las diligencias de pruebas obtenidas sin respetar el plazo legalmente conferido.

El recurso se presentó en el marco de un procedimiento penal seguido en los Juzgados de Torrevieja por presunto delito de Blanqueo de Capitales.

En este sentido, la Ley de Enjuiciamiento Criminal (texto legal que se encarga de regular las reglas del proceso) fija un plazo máximo de 12 meses desde la incoación de la causa para que se desarrolle la investigación judicial. No obstante, consciente el legislador de que existen investigaciones que por su complejidad, el volumen de implicados o diligencias que haya de practicarse en el extranjero (con la consiguiente demora que ello supone), implicaría dejar impunes las más voluminosas o dificultosas causas criminales , concede la posibilidad de que el juez instructor acuerde prórrogas sucesivas por períodos de hasta seis meses sujeto a una única condición, cual es, que dicho juez instructor dicte auto de prórroga antes de que finalice dicho plazo de doce meses, donde motive las razones que hacen necesario mayor tiempo para investigar el/ los delitos que dieron lugar al inicio de la causa.

Pues bien, en el caso que nos ocupa, no se dictó este auto de prórroga de modo que se ordenaron y practicaron pruebas fuera del plazo de 12 meses y, por ende, sin cumplirse las garantías procesales legalmente exigibles.

Entre esas pruebas extemporáneas se encontraba la toma de declaración como investigados de nuestros defendidos. Ante la vulneración del derecho a un proceso con todas las garantías (reconocido en el art. 24 de la Constitución española) y la posible indefensión que ello causaría en los mismos, desde NBAConsulting presentamos los pertinentes recursos de reforma y subsidiario de  apelación, siendo estimado este último por la Audiencia Provincial de Alicante, Sección nº11.

Dicha Sección estima nuestro recurso y las alegaciones expuestas en él y confirma que se practicaron diligencias de investigación fuera del plazo legalmente establecido lo que convierte en ilegales tales diligencias de investigación, entre ellas, la de nuestros defendidos. En consecuencia, resuelve que ha de cerrarse inmediatamente la investigación obligando al juez de instancia a dictar la resolución que proceda (auto de sobreseimiento o de continuación del Procedimiento abreviado ex 779.1 LECrim ) sólo con el material probatorio obtenido hasta la fecha en que se cumplieron los doce meses desde la incoación de la causa.

La Audiencia Provincial de Alicante aplica, por tanto,  la jurisprudencia sentada por el Tribunal Supremo en su reciente sentencia de 3 de noviembre de 2021 como ya lo hicieran Audiencias como la de Madrid, Barcelona o Córdoba, entre otras, y confirma el carácter preclusivo del plazo de doce meses para realizar diligencias de investigación si no se ha dictado el preceptivo auto de prórroga, obligando al juez a concluir la instrucción y tomar una decisión sola y exclusivamente con el material probatorio que figure hasta la fecha de cumplimiento de los doce meses.

Referencias de interés:

  • Tribunal Supremo, Sala Segunda, de lo Penal, Sentencia 836/2021 de 3 Nov. 2021, Rec. 4081/2019.
  • Audiencia Provincial de Alicante, Sección nº11 Elche, Auto 265/2022.

Escrito por abogada de NBA Consulting Andrea Aguinaco Alonso

Why you must make a Spanish Will

by Marina -- |04/04/2022 |0 Comments | Abogado

Most foreign owners of a property in Spain have never thought about how important having a Spanish will is, mainly if they have already signed a will in their countries.

A foreign will is absolutely legal to cover assets in Spain as inheritances are ruled by the national law of the grantor –wherever assets are. However, the heritage is subjected to Spanish Inheritance Tax (only Spanish assets) and in Spain the term of payment is only 6 months.

Then, taking into account these points, if you sign a will in Spain, the inheritance process will be easier, quicker and less complicated for your heirs. Think about the fact that making a foreign will valid to be used in Spain will require of sworn translations, Apostille of the Hague, Probates…lots of documents that may delay the inheritance signature and so the inheritance tax payment. At the end, high expenses, surcharges and penalties.

Signing a Spanish will is one of the easiest and cheapest procedures. You only have to explain to your solicitor the way you want to leave your assets in case of the deceased. Solicitors can give you advice about the legality of the will content to be sure is made according to the Law. Moreover, they can draw a draft of the will in two languages, Spanish and your own language, so you can read it and confirm its content. After approval, your solicitor will arrange an appointment with a notary to make the will official and you will receive a copy to keep in your file of Spanish paperwork.

In conclusion, think about Spanish will as one of the documents you should have after buying a property in Spain.

Model 347, Declaration of transactions with third parties

by Marina -- |31/01/2022 |0 Comments | Asesoría, Asesoría Fiscal

What is model 347?

It is an annual informational declaration, which must be submitted by natural persons in self-employment, as well as legal persons, detailing transactions with customers and/or suppliers provided that they exceed the total of 3005.06 euros per year (including VAT).

Suppliers and customers must submit the 347 model so that the Administration crosses data and can validate the declared information.

Exceptions to the obligation to file?

Among others we can highlight:

  • Those who do not carry out transactions as a whole, concerning a person or entity during the year, greater than EUR 3,005.06.
  • When the main headquarters of the activity is not in Spain.
  • Natural persons or entities under the income allocation scheme taxing on personal income tax by the objective estimation method and VAT simultaneously by the simplified, agriculture, livestock and fisheries scheme or equivalence surcharge. Except for transactions excluded from the application of those schemes or for transactions for which they issue invoices.
  • Taxable persons who are required to report transactions on the books. These are those registered in the Monthly VAT Refund Scheme or the SII system.
  • Intra-Community supplies or acquisitions of goods and services, which are reflected in model 349.

Deadline for your submission?

Deadline for submission: 1 February to 28 February 2022.

Form of the presentation?

Telematics by Electronic Headquarters of the Tax Agency.

Written by María José Martínez. Business Accounting Specialist at NBA Consulting Torrevieja.

BRITISH RESIDENTS IN SPAIN

by Marina -- |10/02/2021 |0 Comments | Abogado, INTERNACIONAL, International, Lawyer

I am British and live in Spain How does Brexit affect me?

Since 1 January 2021, the United Kingdom has ceased to be part of the European Union and has become a non-EU country.

According to the latest update of the National Institute of Statistics, the NIS, some 262,200 British people live in Spain, becoming the fourth foreign nationality, behind only Moroccans, Romanians and Colombians. Of the entire population of foreigners from the United Kingdom residing in our country, one quarter live on the Costa Blanca.

How can I regularize my situation?

British citizens residing in Spain who do not have the registration certificate and have not regularized their status during the transitional period (from 1 February to 31 December 2020), it is essential and urgent that they present their documentation to obtain the residence document in order to obtain legal permanence in our country.

I already have a certificate Do I have to do any formalities?

Citizens who already have a registration certificate do not need to take any further steps and will be able to continue to enjoy their rights without any restrictions. However, it is recommended that they make the change and apply for the new residence document as the latter follows the model established at European level and expressly recognises the status of beneficiaries of the Withdrawal Agreement.

Where and how to present the residence document?

The presentation of the residence document is carried out by telematic means, which streamlines the process and prevents travel to the aliens’ offices.

At NBA Consulting we can advise you and carry out the appropriate procedures to regularize your situation in accordance with the new regulations. Our team of lawyers and advisors will solve any problems you have with your residence permit, always according to your interests.

NBA Consulting, lawyers in Torrevieja.

RESIDENCE PERMIT IN SPAIN FOR BRITISH CITIZENS

by Marina -- |29/07/2020 |0 Comments | Abogado

As it is common knowledge, last January 31, 2020, the United Kingdom left the European Union, given a transition period that will finish next December 31, 2020, under Agreement on the withdrawal of United Kingdom of Great Britain and Northern Ireland from the European Union.

Last July 4, 2020, in turn, an Instruction prepared by the General Directorate of Migrations and the General Directorate of the Police was published. This document establishes the basis of the procedure to be followed to get the residence document for British citizen who have fixed their residence in the Spanish territory in accordance with Article 18.4 of the aforementioned Withdrawal Agreement and its requirements. We will then try to answer the questions that might rise in relation with this Instruction.

If I have the European Union citizen registration certificate, will it still be valid after the end of the transition period? 

  • The registration certificates (commonly called “green cards” or “tarjetas verdes”), that British citizens have obtained before the beginning of the transition period, will continue to be valid and sufficient to prove the legal stay in Spain, although the possibility of requesting the residence document is considered, that is, the EU citizen registration certificate can be changed for the residence document.

In which cases can the change from this certificate to the residence permit can be requested?

  • Several assumptions are foreseen:
  • British citizens who have an EU registration certificate and who have not reached 5 years of legal residence in Spain.

They can apply, before the Police, for the residence document which will have 5 years-validity.

  • British citizens who have an EU registration certificate and who have reached 5 years of legal residence in Spain.

They can apply, before the Police, for the residence document which will have 10 years-validity. In this case, the residence will have consideration of permanent residence.

  • British citizens who have the permanent EU registration certificate.

They can apply, before the Police, for the document of permanent residence, which will have 10 years-validity.

If I do not have the registration certificate, do I have to apply for the residence document? 

  • British citizens who do not have an EU registration certificate, must apply for the residence document, either at the Foreigners’ office of the province in which they live, or electronically. This document which will have a 5 years-validity.

Given that after the end of the transition period the United Kingdom will have the status of a third country, outside the EU, if the residence document is not obtained, there is a risk of being in an irregular situation.

Does it apply to relatives of British citizens?

  • The scope of the Instruction includes both, the interested parties and their relatives, who may also request the residence document.

If I plan to enter Spain after the transition period, what period do I have to regularize my situation?

  • Those citizens who plan to enter Spain once the transition period ends, that is, from January 1, 2021, will have a period of three months to request the residence document.

From NBA Consulting we advise you to consult a lawyer specializing in this area in order to analyze each case, and manage and process the residence permit.

SUMMARY OF THE AID VALENCIAN COMMUNITY FOR SELF EMPLOYED COVID – 19

by Marina -- |09/04/2020 |0 Comments | Uncategorized

Decree 44/2020 dated 3 April 2020, establishes a direct emergency aid scheme for self-employed of the Community of Valencia, who have been forced to suspend their business activity because of Covid-19.

This aid approved by the aforementioned decree, is addressed to self-employed of the Community of Valencia, including working members of associated work cooperatives, in order to compensate them all for the decrease of incomes as a consequence of the declaration of the alert state.

People who can benefit from this aid should meet the following REQUIREMENTS: (art. 3)
a) Having been registered, ceaselessly,  at the Special Regime for Self-employed Workers for, at least, the period 31 December 2019 to 14 March 2020.
b) Having been forced to suspend the business activity as a result of the measures taken by Royal Decree 463/2020 dated 14 March, or, in case of the business activity has continued, when invoicing for previous month to the application of the aid, has been reduced in a 75% with comparison to the average invoicing of previous semester to the declaration of the alert state. If the applicant has not been registered during the six calendar months required, the period of activity will be taken to value the situation.

  1. c) Having the tax address at the Community of Valencia.

Self-employed excluded are those who:

(a) By the 14 March 2020, were beneficiaries of an unemployment benefit or any benefit for the protection by cessation of activity.
(b) They were employed on or after 14 March 2020.
(c) They obtained a net return of their activities higher than 30,000 Euros during 2019.
(d) They fall into any of prohibition under pursuant General Law on Subsidies, in particular into any of those listed in Articles 13 (2) and (4). (There are many references to this law, so we have not included them).

This aid will be not granted to the following sectors:
a) Fishing and aquaculture, ruled by Council Regulation (EC) No. 104/2000.
b) Primary production of agricultural products.
c) Aid granted to companies involved in the processing and marketing of agricultural products.
d) Activities involved in exports to third countries or Member States.
e) Aid granted for the use of domestic products rather than imported.

As for the AMOUNT of the aid (Art 4), this will be 1,500 Euros for people who have been forced to suspend their business activity by Royal Decree 463/2020, and 750 euros for rest of applicants. It has been established an overall maximum amount of €57,500,000 of the Community of Valencia’ funds (without prejudice to an extension with State or European resources).

The CRITERIA FOR THE AWARD, UNTIL THE CREDIT IS EXHAUSTED (art. 7), will be THE PRESENTATION OF THE APPLICATION, which IS NOT considered presented until all documents required are provided. In case of applications presented at the same time, priority will be given to applications submitted by people with functional diversity and, failing this, by women.

PERIOD (art. 5) to present applications starts at 9 a.m. on 8 April 2020 and ends at 9 a.m. on 4 May 2020.

Application has to be presented electronically at the Community of Valencia’ website (Generalitat Valenciana or gva), through a specific procedure established named “EAUCOV 2020 Extraordinary aid for self-employed Covid-19”.

Digital signature is requested for the electronic process or a different certificate accepted by the Community of Valencia’ website. If digital signature is not available, a representation must be given to a third person who had it (such authorization should be presented).

Application should be followed by these DOCUMENTS (article 6):

  1. Certificate of status in the census of economic activities of the State Treasury Administration Department.
  2. Personal statement related to the requirements.
  3. Direct debit form.
  4. Representative’s authorization.
  5. Personal statement of the minimum aid granted to the applicant during the two previous tax years and during the current tax year, as well as other state aids for the same risk finance measures.

Only one application per person will be accepted. By the presentation of the request, except expressly objection (in which case supporting documentation must be provided), the Valencian Employment and Training Service (“LABORA”) is authorized to collect information regarding the following:

  1. Identity of the applicant. In its case, of the representative.
  2. Working life, certified by the Social Security Treasury.
  3. Positive certificate of being in compliance with tax obligations and with the Social Security.
  4. Certificatie from the State Treasury Administration Department in relation to earnings from economic activities, fiscal address and any other requirement demanded to the beneficiaries.

Reviewed the applications, a report will be issued (article 7) where it will be stated that the requirements for the granting of the aid have been met, and the proposal of granting will be issued, by the person in charge of the Autonomous Secretariat of Employment or agency in which it delegates, and addressed to the competent agency to resolve it.

Term to resolve and notify the resolution (article 8) will be three month from the presentation of the application at the electronic headquarters of the Community of Valencia. If that term elapses without a decision has been issued or notified, administrative silence will occur, and the request will be understood as rejected.

The resolution will determine the amount granted and it will include, in such case, the conditions, obligations and determinations to which the beneficiary will be subjected.

Appeals against the resolution are contained in article 8.5.

Once the granting resolution is obtained, the amount of the aid will be paid in one go (article 9).

In additon to the obligations contained in the General Law on Subsidies, the beneficiaries of these aid have the following DUTIES (article 10):

  1. Maintain the self-employed activity for at least three month, counting from the day the suspension of the activity expires.
  2. Provide as much data and information, in any issues related to the granted subsidies, LABORA may require.
  3. Communicate to LABORA the application or granting of any other subsidies or aids with the same purpose, as well as incidences or variations in relation to the subsidy granted.
  4. Fulfill with the transparency obligations in case of having received during one year any public aid or subsidy for a higher amount than000 euros. The beneficiaries must advertise on their website (if they have) the obtaining of the subsidy.
  5. Submit to actions of financial control.

There are cases (article 11) with obligations to pay back the amounts received, as well as the request of interest on arrears, those contemplated at article 37 of the General Law on Subsidies 38/2003 and many other of the Law 2/2015 of Transparency, Good Governance and Citizen Participation of the Community of Valencia. In particular, in case of falseness of the personal statements presented, and in case that the loss of profit is less than the subsidy granted.

This subsidy is incompatible (article 12) with any other aid, subsidy, income or economic resource for the same purpose, but bonuses of the Social Security contributions and the State Extraordinary benefit for self-employed affected by the crisis caused by Covid-19.

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