B Law & Tax
01 September 2023

Tax advisor: Is it valid to automatically offset a credit and a debt in the enforcement period before duly notifying the order of constraint?

The ruling under appeal determined that the Administration, without going back in the collection process to properly notify the levy order, despite the cancellation of a seizure proceeding in accordance with the resolution of the Economic-Administrative Court (TEAR), proceeded to offset a credit in favor of the claimant and a debt derived from a liquidation. It is important to highlight that in relation to this liquidation, the appellant was not allowed to challenge it and, given that the Administration had already carried out the offsetting, it was clear that it did not intend to notify the levy order again. This sequence of events resulted in a prejudice to the plaintiff, as the Administration obtained the immediate collection of the debt through an action that, according to the TEAR’s decision, was considered irregular for not having adequately followed the procedures for notification of the writ of assessment required by article 167 of the General Tax Law (LGT).

In this context, the judgment annulled the contested offsetting action. The issue that raises a relevant legal interest focuses on determining whether it is in accordance with the law to proceed with the automatic offsetting of a recognized credit and a debt in the enforcement period before the correct notification of the enforcement order. This becomes especially relevant in situations in which the credit in favor of the debtor arises as a consequence of the cancellation of a seizure order that was not duly notified, and on the basis of which the collection of the same debt sought to be offset was initially sought.

B Law & Tax International Tax & Legal Advisors.


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