Implemented by the 2024 finance law (LF-2024), the “right to make mistakes” has gone almost unnoticed. However, this is a fundamental principle that turns the entire philosophy of tax law upside down.
The “right to make an error”, a principle established by LF-2024, should allow taxpayers to spontaneously correct their tax returns. To err is human. Although, in principle, new technologies and the digital processing of accounting and tax information can minimize this risk of involuntary and good faith error. In fact, this “right to make mistakes” already existed in practice and in administrative doctrine. Especially when the error is purely material. One figure too many or less, and the entire tax declaration can end up in the “gray zone”, targeted as a priority by the tax audit (CF).
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This “right to make an error” has therefore been formalized and integrated into the General Tax Code (CGI), which makes it possible to strengthen “tax security” and to make the relationship between taxpayers and the tax administration (AF) , more flexible, more transparent and more human. This is a new step in the effective implementation of the spirit and letter of the declarative tax system, that is to say voluntary adherence to tax compliance. This also means that tax is seen as one of the first duties establishing active and effective citizenship, and as the main source of financing “living together”. Thus, the “right to make an error” is above all favorable to the taxpayer who is no longer perceived by the AF through a “systematically suspicious vision” where a “presumption of guilt” prevails, resulting from a “systematically suspicious vision” Hobbessian” where the human being would be evil by nature, and therefore potentially fraudulent. Like criminal law, the individual taxpayer benefits from the presumption of innocence, and it is up to the AF, through the exercise of the right of control, to prove the contrary.
The “right to make an error”, put in place by the LF-2024, aims to allow the taxpayer to regularize, on his own initiative and spontaneously, his tax situation, and to benefit from a more simplified application of the sanctions. Thus, a new system has been put in place allowing the taxpayer to ask the AF to communicate to them a statement of the irregularities noted in their declarations, and to submit a corrective declaration, while spontaneously paying the additional duties due. This approach can only be beneficial to both the taxpayer and the AF. The first avoids financially penalizing sanctions. The second increases its tax revenues and focuses its tax control efforts on the segment of taxpayers who present the greatest risk of fraud. Indeed, this new system allows the taxpayer to benefit from the non-application of increases and penalties (15% or 20%, or even 100%, in the event of established bad faith).
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However, the late payment tax increases of 5% for the first month and 0.5% for each of the following months remain applicable. Furthermore, subscribing to the corrective declaration does not exempt you from the CF. Said corrective tax declaration must be submitted within 60 days from the date of receipt of the statement of irregularities and must be accompanied by an explanatory note drawn up either by a person authorized to exercise the functions of auditor, when the turnover (CA) excluding VAT, achieved for the last closed financial year is equal to or greater than 50 MDH, either by a chartered accountant or a certified accountant, other than the one responsible for keeping the taxpayer’s accounts concerned, when the turnover excluding VAT, achieved for the last closed financial year is less than 50 MDH. The explanatory note must include: the irregularities noted, as the case may be, by the auditor, the chartered accountant or the chartered accountant; and the rectifications made by the taxpayer, for all the items and operations concerned, as well as the detailed reasons justifying the total or partial non-rectification of the irregularities communicated by the AF.
Please note, however, that declarations which have already been the subject of tax rectification procedures are excluded from this new system. In the event of late submission of corrective declarations (beyond the 60-day deadline, from the date of receipt of the statement of irregularities), the increases and penalties are fully applicable. Ultimately, the new system should above all contribute to improving the quality of the content of the tax declarations submitted and therefore restore trust between the taxpayer and the AF.
Voluntary tax compliance: a strategic axis of the DGI
In the latest activity report of the Directorate General of Taxes (DGI), for the year 2023, a part was specifically reserved for the “promotion of voluntary compliance”. It is a priority and strategic axis for strengthening tax discipline, considered a “pillar of the tax system” and whose promotion is based on the establishment of a culture of tax citizenship favorable to consent to tax. Thus, the DGI seems to favor “tax dialogue”, while being engaged through a multiplicity of actions, both in terms of education and tax awareness and in terms of digitalization to facilitate administrative and tax procedures, all by modernizing its service provision.
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Concretely, this promotion of voluntary compliance, far from being a simple declaration of good intentions, is carried out, in particular through the constant publication of the duly updated General Tax Code, circular notes, contributions to specialized journals, capsules and reports and tax guides. The DGI also uses social networks, the press, audiovisual media and the internet portal, without forgetting the popularization of tax among the younger generation, particularly in primary schools. This is thanks to the high-level female staff responsible for communication available to the DGI. Membership of the DGI’s tele-services also increased by 16% in 2023, compared to 2022, to reach 2,183,250. For the same year 2023, almost 23 million dematerialized operations were recorded. Tele-declarations, telepayments, and online retrieval of certificates account for nearly 87% of dematerialized operations. In fact, for a long time, the DGI has rightly been seen as being at the forefront in the digitalization of public services.
“Right to make mistakes”: new system put in place by LF-2024
Article 221 bis. of the General Tax Code – Procedures for filing the amending declaration(…)
IV. – A- Taxpayers subject to corporate tax or income tax according to the real net profit or simplified net profit regime, can spontaneously rectify irregularities in their tax declarations, by submitting corrective declarations , by electronic process, according to a model established by the administration, for non-prescribed exercises and by proceeding, where applicable, to the spontaneous payment of the additional rights due. To this end, before submitting the corrective declarations, said taxpayers must request, by electronic means, the tax administration to communicate to them the status of any irregularities noted in their declarations for non-prescribed financial years. This statement is communicated to the taxpayer concerned, electronically, within sixty (60) days from the date of receipt of their request. Corrective declarations must be submitted within sixty (60) days from the date of receipt of the aforementioned statement of irregularities. This declaration must be accompanied by an explanatory note established by:
– a person authorized to exercise the functions of auditor, when the turnover achieved for the last closed financial year is equal to or greater than fifty million (50,000,000) dirhams excluding value added tax;
– a chartered accountant or a chartered accountant other than the one responsible for keeping the accounts of the taxpayer concerned, when the turnover achieved for the last closed financial year is less than fifty million (50,000,000) dirhams excluding tax on added value. The aforementioned explanatory note must be established according to a model established by the administration including: – the irregularities noted, as the case may be, by the auditor, the chartered accountant or the aforementioned chartered accountant;
B- Declarations which have been the subject of one of the procedures for rectifying taxes provided for in Articles 220 and 221 above cannot be the subject of the corrective declaration provided for in A of this article.
V. – The increase provided for in article 184 above as well as the penalty provided for in article 208 above are not applicable in cases where the taxpayer files the corrective declaration provided for in paragraphs I, II , III and IV above.
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