The interpretation of articles 106 and 47.1.f) of Law 39/2015 (Common Administrative Procedure Act) together with article 222 of the Civil Procedure Act, allows concluding that the ex officio review of an administrative act, which has been declared produced by positive silence in a final judgment, is not prevented by the positive effect of res judicata, as long as the judgment has limited itself to affirm the operation of the positive silence and has not examined the possible substantive illegalities of the challenged act.
In relation to the action of full nullity, the limit for its exercise is not having previously filed a contentious-administrative appeal seeking its nullity, even if new grounds are alleged, if the judgment has been dismissed. The principle of legal certainty does not allow the reopening of debates definitively resolved by the courts of justice.
On the other hand, the prohibition of review of tax acts established in article 213.3 of the General Tax Act (LGT) does not apply in those cases in which there is a final court decision that, without examining the grounds of the challenge, dismisses a previous appeal because it considers the decision of the Central Economic-Administrative Court (TEAC) to reject it as untimely to be in accordance with the law. Article 213.3 LGT does not establish any prohibition with respect to final court rulings that merely declare the appeal filed before the TEAC to be out of time, as the TEAC had declared.
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