Unlike what happens with the deposit of Annual Accounts, whose breach is perfectly regulated (Article 283 of the Spanish Corporation Law), the breach or extemporaneous (late) compliance of the obligation to legalize the accounting and corporate books required by the Commercial Code (Articles 25 and 26 CCo), does not carry any direct sanction by commercial or tax regulations.
In effect, the Commercial Registry is not a sanctioning body, since it is limited to (i) registering documents, (ii) depositing the annual accounts, (iii) issuing simple notes and / or certifications, and (iv) legalizing the accounting / corporate books. In that sense, the article 333 of the Regulations of the Commercial Registry in its point 3 states: “In the event that legalization is requested outside the legal term, the Registrar shall record this in the diligence of the Book and in the corresponding entry of the Book-file of legalizations “. Therefore, from a commercial point of view, it does not seem to be penalized by the lack of legalization or its realization after the deadline.
Given that there is no sanction procedure inherent in the breach or untimely compliance of the obligation to legalize the accounting and corporate books required by the Commercial Code, we can say that such situation would be likely to have possible indirect consequences, which can be summarized in three:
A) Tax consequences:
In the tax area, the General Director of Taxes (DGT), through its Resolution of July 23, 2010 (binding consultation V1689-10), has pronounced itself regarding the extemporaneous fulfillment of the obligation to legalize the accounting books, referring to article 200 of the General Tax Law (LGT) that establishes the following:
“1. Tax breach is the breach of accounting and registry obligations, among others:
a) The inaccuracy or omission of operations in accounting or books and records required by tax regulations.
b) The use of accounts with a different meaning from the one that corresponds to them, according to their nature, which hinders the verification of the tax situation of the obligor.
c) Failure to comply with the obligation to keep or keep the accounts, the books and records established by the tax regulations, the programs and computer files that serve as support, and the coding systems used.
d) The keeping of different accounts referring to the same activity and economic year that make it difficult to know the true situation of the taxpayer
e) The delay in more than four months in keeping the accounts or the books and records established by the tax regulations.
f) The authorization of books and records without having been completed or authorized by the Administration when the tax or customs regulations require such requirement. “
There is a generalized opinion that the breach or untimely compliance of the obligation to legalize the accounting and corporate books, by itself can not automatically assume the commission of a tax violation by the tax administration, moreover if it is a company that keeps up its accounting and tax obligations.
Therefore, given that the aforementioned article 200 of the General Tax Law (LGT) does not contain a closed list but rather a numerus apertus of breaches constituting a tax infringement for breaching the accounting and registry obligations, from a fiscal point of view the Administration will assess the circumstances of each case in particular to determine if this lack of legalization of books involves a tax violation and, consequently, the imposition of a specific penalti.
B) Effects in relation to the classification of the guilty of the bankruptcy proceedings (164.2.1º Bankruptcy Law):
It can be estimated as a cause of culpability in the qualification of the Contest the lack of legalization of accounting and corporate books, for which it is necessary not only that such a breach has occurred, but that the lack of legalization is substantial, relevant and serious, understanding that the administrator could have tried the falsification of said books.
If it is shown that management of the company has been carried out in accordance with the mercantile and tax legislation, the lack of legalization in itself does not constitute a cause of culpability (article 164.2.1º of the Bankruptcy Act).
C) Consequences on the validity of documents for evidentiary purposes in case of internal conflict in the company or with third parties:
For evidentiary purposes, the legalization of the books guarantees that the content of the mercantile documents is sealed so that it can not be manipulated a posteriori. In this way, in case of internal conflict or with third parties, if the obligation to legalize the books is not fulfilled, they would lose their probative value because they can not be guaranteed that they have not been modified by the company.
On the other hand, it could be possible that, since it is an obligation of the company’s administrator, the breach / untimely fulfillment of the same could give rise to the exercise of the action of liability against the administrator, by a creditor of the company or even by a partner, founded on the absence of his duty to act with due diligence.
Finally, although the breach of the deposit of the accounts entails the closing of the registration of the seat, which will prevent us from recording any subsequent act as long as we do not subtract the obligation (except for the exceptions contemplated in the article 378 of the Mercantile Registry Regulations), On the contrary, the lack of legalization of the books does not suppose any obstacle at the moment of presenting to inscription any document of the society in the Mercantile Registry.
Therefore, the sooner you acquire the good habit of legalizing all books on an annual basis, it will be better.