On November 25, 2022, the Contentious-Administrative Division of the Supreme Court issued judgment 4382/2022, in cassation appeal number 1393/2021, in which it establishes doctrine on the conditions under which the guarantee provided by the principal debtor can serve the jointly liable parties to obtain the suspension of the agreement on the derivation of joint liability without the need to provide a guarantee through administrative proceedings.

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

The Supreme Court does not consider Article 124 of the General Collection Regulations to be appropriate, since it does not involve the assumption that one of those responsible 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 executive 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 principal debtor (emphasis added) and forms the following jurisprudence in response to the question of cassation interest:

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

It is a different matter if the guarantee was not sufficient , in which case, "if the Court considers the doctrine defended by the appellant to be applicable, the same would have to be qualified according to the guarantees provided, allowing, where appropriate, a pronouncement by the tax authorities on the sufficiency of the guarantee provided by the principal debtor, so that the suspension could not be considered automatic" , in which case, it would be justified to require the responsible party to guarantee the outstanding unsecured debt for the suspension . »

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