Insolvency

The Supreme Court (SC) resolves a conflict between the Tax Agency (AEAT) and the insolvency administration of a company in insolvency proceedings regarding whether, in addition to the main tax and interests, the enforcement surcharges must also be paid as credits against the insolvency estate (that is, debts generated after the insolvency declaration and that must be addressed during its processing).

The company was declared in insolvency in November 2017 and later the liquidation phase was opened. In November 2020, the AEAT certified a total debt of €55, 980. 87, consisting of €44, 520 of the main tax, €3, 252. 63 of default interest, and €8, 208. 24 of enforcement surcharge. The insolvency administration agreed to acknowledge and pay the main tax and the interests , but refused to pay the surcharges, arguing that, once the liquidation phase is initiated, the administrative enforcement procedure cannot be started.

Both the commercial court and the Provincial Court confirmed that refusal . However, the SC corrects that conclusion, explaining that it is one thing that administrative executions or seizures cannot be carried out during the insolvency proceedings, and another thing that the tax debt generated during the insolvency proceedings cannot accrue interests and surcharges by operation of law. According to the SC, these surcharges can also be considered as credit against the mass.

Therefore, the TS estimates the appeal of the AEAT and condemns the insolvency administration to recognize and pay the surcharges claimed.