Derivations of liability. Solidarity and subsidiary.
Assumption in which the Tax Agency derives responsibility from administrators for inactive company tax debts with debts or for tax offenses.
In accordance with the provisions of article 42.1 of the LGT, the following are jointly liable for the tax debt:
- Those who cause or participate in the commission of a tax offense.
- Those who are partners or joint owners of the entities in proportion to their corresponding shares.
- Those who substitute in the ownership or in the exercise of benefits or economic activities to the previous taxpayer.
Likewise, the same article, in its second section, establishes that, in addition, they will be jointly and severally liable :
- The people who, either of origin or in an auxiliary way -and in order to obstruct the task of the Administration-, conceal or transfer assets or rights of the taxpayer.
- Those who, through fault or negligence , disobey the seizure orders.
- The people who cooperate or allow the lifting of embargoes, precautionary measures or guarantees instituted on assets or rights, with full knowledge of the existence of said measures.
- The persons or entities that, having received notification of the seizure, and being depositories of the debtor’s assets, help or consent to the raising of said assets.
From the foregoing, it follows that the intervention of a third party is essential for any of these assumptions to materialize. Consequently, he has to participate in a tangible way in the performance of any of these acts so that the Administration can declare him – either a natural person or a legal entity – as jointly and severally liable.
In recent years, the use, by the Collection bodies of the Tax Administration, of the figure of the derivation of liability, either to increase the targets for the collection of tax debts (joint liability), has increased significantly. either to avoid that a debt becomes uncollectible in the cases in which the taxpayer lacks attachable assets (subsidiary responsibility).
The main characteristic of the derivation of liability, whether joint or subsidiary, is that it is an instrument that allows the Treasury to demand from a third party the payment of tax debts that are not its own. From ABOGADOS VELAZQUEZ, we review the referrals and file all kinds of resources until their resolution, since we are lawyers and we can appeal your procedure from the first initial allegations by means of an appeal for reconsideration, appeals to the ECONOMIC ADMINISTRATIVE COURT, CENTRAL COURT, SUPERIOR COURTS OF JUSTICE OR NATIONAL HEARING and ultimately RESOURCES TO THE SUPREME COURT.
Our experience covers all areas and we know the companies and their operation apart from being accounting experts, so we have all the knowledge and experience necessary to carry out the best possible defense of a tax liability derivation. We have numerous cases resolved demonstrably favorably in favor of our clients.