B Law & Tax
10 July 2023

Tax advisor: It is not correct to attribute subsidiary liability directly linked to the infringement when there is no infringement in which the directors of the company have participated

The basis on which subsidiary liability is attributed to the directors is the existence of a tax infringement committed by the company in which they have participated. However, when the tax infringement is annulled, in this case due to the lack of motivation of the culpability, the necessary requirement for the derivation of liability to the administrators is not fulfilled. This will result in the total annulment of the declaration of liability, without it being possible to maintain the derivation of liability in relation to the liquidation. This situation is due to the fact that Article 43.1.a) of the General Tax Law (LGT) contemplates a case of liability directly linked to the infringement, based on the commission of tax infringements by the company. Even the economic-administrative courts have recognized that the lack of reasoning of the penalties imposed on the company is sufficient to annul the declaration of liability under Article 43.1.a) of the LGT notified to the company’s administrator. Thus, the lack of motivation of the original sanctions makes it unnecessary to evaluate the degree of negligence attributable to the administrator in relation to the infringements committed by the company, since it is sufficient by itself to annul the agreement of declaration of liability.

Once the non-existence of a duly sanctioned tax infringement in which the company’s administrators have participated has been established, the necessary requirement for attributing subsidiary liability, as established in article 43.1.a) of the LGT, is not met. Therefore, the court considers that when, when challenging an agreement of derivation of subsidiary liability based on article 43.1.a) of the LGT, the invalidity of the ruling that imposed a penalty on the principal debtor is declared, the derivation of liability, which covers both the debt and the penalty, must be completely annulled due to the lack of the enabling budget for tax liability.

B Law & Tax International Tax & Legal Advisors.

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