On November 25, 2022, the Contentious-Administrative Chamber of the Supreme Court issued ruling 4382/2022, in cassation appeal number 1393/2021, in which it establishes doctrine on the conditions under which the guarantee provided by the The main debtor can serve those responsible jointly to obtain the suspension of the agreement to derive joint liability without the need to provide guarantee through administrative means.

In said ruling, the Supreme Court starts from the difference in effects that occur depending on the debt collection situation in the main debtor or those responsible, in view of the provision contemplated for the latter in article 124.2 of the Regulations. General Collection, approved by Royal Decree 939/2005, of July 29, and the autonomy and guarantee function of the declaration of responsibility procedure.

For the Supreme Court, it is not possible to interpret article 124 of the General Collection Regulations because it is not faced with the assumption that one of the responsible parties guarantees the debt, which, in principle, will not extend to the rest and focuses the object of analysis on the assumption that the main debtor has guaranteed the tax debt, which prevents him and those responsible from continuing, if applicable, the enforcement period with the corresponding surcharges.

The conclusion reached by the Supreme Court establishes the criteria to be followed according to the debt situation of the main debtor (emphasis is mine) and forms the following jurisprudence in response to the question with cassational interest:

« The doctrine to be established, therefore, must be limited to stating that the guarantee provided by the main debtor is transferable to the jointly liable parties, so that they can obtain the suspension of the agreement deriving joint liability without need. to provide guarantee through administrative means , with the sole invocation that the main debtor provided the corresponding guarantee to respond for the payment of the tax debt; with the exception made below.

A different thing is that the guarantee was not sufficient , in which case, "if the Chamber considers applicable the doctrine defended by the appellant, it would have to be qualified depending on the guarantees provided, allowing, where appropriate, a statement from the Tax Administration on the sufficiency of the guarantee provided by the main debtor, so the suspension could not be considered "automatic" , in which case, if it would be justified for the suspension to require the person responsible to guarantee the outstanding unsecured debt .»

You can consult this ruling at the following link: STS 4382/2022, of November 25, 2022