The Contentious-Administrative Chamber of the Supreme Court has issued, on December 22, 2022, sentence 1746/2022, in cassation appeal number 1268/2021, in which it establishes jurisprudence on some requirements of the declaration of failure .

In said ruling, the Supreme Court analyzes whether the declaration of failure must specify whether it is a total or partial insolvency of the debtor and clarifies the need to exhaust the procedures of the enforcement procedure aimed at finding out the existence of assets and rights of the debtor. debtor susceptible to seizure, initiated by the Administration prior to declaring a debtor bankrupt, specifying what these procedures are, and, in particular, whether the requirement formulated under article 162 of Law 58/2003, of December 17 , General Tax, is considered the processing of the enforcement procedure and whether a debtor can be declared bankrupt before the deadline to respond to that requirement expires.

The conclusion reached by the Supreme Court establishes the following jurisprudence in response to questions of cassational interest:

"[A]s to the first question of cassational interest, [...] the declaration of bankruptcy of the main debtor does not require, for its validity, the quantitative expression of the partial nature of the insolvency, without prejudice to the fact that the declaration agreement of subsidiary liability, it must incorporate the precise identification of the scope of the debt being derived, and specify, where appropriate, its partial scope.

And regarding the second question of cassational interest […] sufficient verification of the debtor's insolvency situation does not require that all the procedures of the executive period be exhausted with respect to each and every one of the debts, but can be obtained as a result of the executive actions and/or verification and investigation carried out with respect to any of the debts, so that if the insolvency is sufficiently proven, the circumstance that a response by the debtor is pending from being formalized. requirement made by the Administration, subsequent to those acts of investigation and embargo, under the protection of art. 162.1 LGT, so that the debtor informs the Administration of the assets and rights of his assets."

You can consult this ruling at the following link: STS 4927/2022, dated December 22, 2022 .