Post by account_disabled on Mar 5, 2024 7:06:40 GMT
Ruling of the Contentious-Administrative Chamber of the Supreme Court
The Contentious-Administrative Chamber, Section 2, of the Supreme Court, in ruling 1023/2023 of July 18, declares that " the calculation of the limitation period to demand the obligation to pay from those responsible jointly is not interrupted by actions carried out against to the principal debtor or to the Fax Lists obligor with respect to whose debts the responsibility arises, except in those cases in which the interruption - of the power to demand payment - is directed to the person who has previously been declared responsible, therefore, until the act is adopted formal derivation, it is not possible to speak in the proper sense of a taxpayer or of a person responsible or liable.”
In fact, art. 68.7, related to section 1, a) and b) LGT, must be interpreted in the sense that there is a correlation between the power to declare the derivation of joint and several liability and the power to demand payment from the person already declared responsible - different and successive actions. , the interruptive events being different in both cases, so that the interruptive nature of collection actions is only suitable and effective for demanding collection from the person responsible for a debt already derived.
The Chamber understands, therefore, that the principles of legal certainty [1] (from which the extinctive prescription arises as a rule of certainty) and good administration are opposed to the fact that it is in the hands of the Tax Administration to postpone the declaration ad calendas graecas of third party liability , here joint and several, due to business succession, once the expiration of the payment period in the voluntary period of the main debtor is known, because "the very nature of tax liability (arts. 41 to 43 LGT) as an essential guarantee design and debt insurance requires the immediate determination of who is responsible -art. 42.1.c) LGT-, as soon as the non-payment of the main debt is known and the existence of a legal cause that constitutes a presumption of liability, without this regime being able to be altered by collection acts directed against the main debtor -or, eventually, against previous responsible persons (successive or chain liability) when the responsibility that corresponds in each case has not yet been declared, and may be made.”
[1] The Chamber highlights that the jurisprudence has declared that: “ the file for derivation of tax liability fulfills a sanctioning purpose, so the fact that our Legislation does not establish a clear time limit beyond which it is not possible Proceeding to derive joint and several liability could violate the principle of legal certainty enshrined in Article 9.3 CE .
The Contentious-Administrative Chamber, Section 2, of the Supreme Court, in ruling 1023/2023 of July 18, declares that " the calculation of the limitation period to demand the obligation to pay from those responsible jointly is not interrupted by actions carried out against to the principal debtor or to the Fax Lists obligor with respect to whose debts the responsibility arises, except in those cases in which the interruption - of the power to demand payment - is directed to the person who has previously been declared responsible, therefore, until the act is adopted formal derivation, it is not possible to speak in the proper sense of a taxpayer or of a person responsible or liable.”
In fact, art. 68.7, related to section 1, a) and b) LGT, must be interpreted in the sense that there is a correlation between the power to declare the derivation of joint and several liability and the power to demand payment from the person already declared responsible - different and successive actions. , the interruptive events being different in both cases, so that the interruptive nature of collection actions is only suitable and effective for demanding collection from the person responsible for a debt already derived.
The Chamber understands, therefore, that the principles of legal certainty [1] (from which the extinctive prescription arises as a rule of certainty) and good administration are opposed to the fact that it is in the hands of the Tax Administration to postpone the declaration ad calendas graecas of third party liability , here joint and several, due to business succession, once the expiration of the payment period in the voluntary period of the main debtor is known, because "the very nature of tax liability (arts. 41 to 43 LGT) as an essential guarantee design and debt insurance requires the immediate determination of who is responsible -art. 42.1.c) LGT-, as soon as the non-payment of the main debt is known and the existence of a legal cause that constitutes a presumption of liability, without this regime being able to be altered by collection acts directed against the main debtor -or, eventually, against previous responsible persons (successive or chain liability) when the responsibility that corresponds in each case has not yet been declared, and may be made.”
[1] The Chamber highlights that the jurisprudence has declared that: “ the file for derivation of tax liability fulfills a sanctioning purpose, so the fact that our Legislation does not establish a clear time limit beyond which it is not possible Proceeding to derive joint and several liability could violate the principle of legal certainty enshrined in Article 9.3 CE .