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Requirements to maintain the suspension of the execution of the tax penalty, through contentious-administrative proceedings

The Central Economic-Administrative Court (hereinafter TEAC), in its resolution of October 18, has resolved appeal 1617-2022, in which it addresses the issue of the suspension of sanctions through contentious-administrative proceedings.

The General Tax Law regulates the suspension of execution in article 233.11 which, in its current wording on the date of the events, provides:

The suspension produced through administrative means will be maintained when the interested party notifies the Tax Administration within the deadline for filing the contentious-administrative appeal that he has filed said appeal and has requested the suspension on it. Said suspension will continue, provided that the guarantee that had been provided through administrative channels retains its validity and effectiveness, until the judicial body adopts the corresponding decision in relation to the requested suspension.

In the case of sanctions, the suspension will be maintained, in the terms provided in the previous paragraph and without the need to provide a guarantee, until the judicial decision is adopted.

Therefore, the suspension obtained through administrative and economic-administrative means - whether it refers to settlements or sanctions - only operates in such ways, with the sole exception that within the period for filing the corresponding contentious-administrative appeal, the suspension is requested. and report it to the tax administration. In the event that these conditions are met, the suspension of settlements and sanctions takes effect until the contentious court decides on the request made.

The first requirement for the suspension to be extended through contentious-administrative proceedings is that the interested person requests it through the courts when the appeal is filed. The mere filing of a contentious-administrative appeal is not sufficient, therefore, to maintain in the contentious way the suspension obtained in the economic-administrative way. It is necessary to request judicial suspension. This is how the TEAC ruled in its resolution of March 17, 2022 (RG 238/2020), reiterating the criteria of another previous one of September 9, 2009 (RG 6343/2008).

Regarding the requirement of communication to the Tax Administration within the period for filing the contentious-administrative appeal that said appeal has been filed and its suspension has been requested, the Supreme Court has had the opportunity to rule in its ruling of October 15 of 2020 (Rec. cas. 315/2018) reiterated in other subsequent ones: ruling of November 19, 2020 (Rec. cas. 6226/2018) and ruling of January 5, 2021 (Rec. cas. 4480/2019).

The TEAC establishes the following criteria: “The ex lege suspension of the sanctions that occurs on the occasion of their challenge in administrative or economic-administrative proceedings is not maintained in contentious-administrative proceedings for longer than the time established to file the corresponding appeal in this proceedings. To obtain the suspension during the development of the contentious-administrative process, an express request must be made to the corresponding court of Justice, maintaining the suspension until the court rules on it, and must comply with the terms of the judicial decision.

You can consult the full text of the Resolution at the following link: TEAC Resolution 18 Oct. 2022, Rec. 1617/2022