BackThe Supreme Court determines, in its judgment of February 15, 2023, appeal no. 3001/2021, that the simple fact of accepting the distribution of dividends agreed by the shareholders’ meeting is not sufficient for the factual assumption of the derivation of liability for unlawful acts.
It is also necessary to perform an active act, which means the attitude of causing or collaborating at least in the Meeting in which the distribution of dividends is made.
In order to benefit from such dividends, it is not enough simply to receive them financially, since it is not sufficient to understand as realized the normative element whose governing verb is collaboration or cause.
It is treated in this way in all forms except in those in which it is positively established that the abstention or disengagement is within an evasion plan or strategy with more partners in relation to not doing and achieving with it, what would be evasive.
In this way, the right of information of the partner would constitute a guarantee of the minority partner in relation to the administrators.
It is for this reason that the singular fact of obtaining a distributed profit without the assistance or vote of the partner is not sufficient in general cases.
In addition, several aspects are considered to be taken into account, such as the fact that the General Tax Law (LGT) is subjective and its establishment is subject to proof by the Administration of the conduct, the liability established in article 42.2 a) or that the LGT, except for sufficient proof of the existence of a fraud or pact comprising the evasion strategy without taking into account the specific tax debts referred to an evasion, could not consider this proof sufficient.
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