B Law & Tax
02 August 2023

Tax advisor: The Supreme Court rules on the prohibition to review tax acts according to art. 213.3 of the General Tax Law

Recently, the Supreme Court, in its decision no. 909/2023 of July 4th, has established a doctrine regarding the interpretation of the prohibition to review tax acts according to article 213.3 of the LGT. The interpretative criterion established is that this prohibition does not apply when there is a final court decision which, without analyzing the grounds of the challenge, previously rejected the appeal on the grounds that the economic-administrative court had rejected it as untimely.

The Supreme Court, in addressing the issue, starts from the fact that the administrative power of review is subject to the constitutional mandate of Article 118 of the Spanish Constitution, which requires compliance with the final judgments and resolutions of the judges and courts, also binding the Public Administrations. Likewise, it considers applicable the existing general jurisprudence, which establishes that it is not possible to request an ex officio review when it has already been previously challenged in jurisdictional proceedings and there is res judicata, even if different grounds for nullity are presented. Specifically, the Supreme Court holds the following: in short, it is not possible to reopen the debate before the Administration on the nullity of an administrative act that has been implicitly confirmed due to the dismissal of a jurisdictional appeal filed against it, even if new grounds for nullity are presented that were not previously alleged in the contentious-administrative process. This limitation is necessary to preserve the principle of legal certainty, preventing any final judgment from being challenged indefinitely by means of new arguments. Furthermore, whoever seeks judicial protection against an administrative act must exhaust all the grounds for nullity or annulment that he considers pertinent, since if he does not do so, such defects will be deemed to have been consented to. Consequently, the action for full nullity cannot be exercised if a contentious administrative appeal has been previously filed seeking the nullity of the act, regardless of whether new grounds are alleged in a subsequent instance.

Thus, the Supreme Court establishes that the review of acts following a final judgment declaring the conformity of the act with the law is limited by the principle of legal certainty. However, if the judgment could not pronounce on the conformity of the act due to reasons of inadmissibility or positive silence, there is no such limit to request the special review. Article 213.3 of the LGT supports this interpretation by requiring that the act has been confirmed by a final court judgment, i.e., that the judgment declares that the act is in accordance with the law. In the case under review, this article does not apply, since the judgment only established that the appeal was filed out of time.

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