On 25 November 2022, the Administrative Chamber of the Supreme Court handed down judgement 4382/2022, in appeal number 1393/2021, in which it established the doctrine on the conditions under which the guarantee provided by the main debtor can be used by those jointly and severally liable to obtain the suspension of the agreement of derivation of joint and several liability without the need to provide a guarantee in administrative proceedings.

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

For the Supreme Court, Article 124 of the General Collection Regulations cannot be interpreted because it is not the case that one of the responsible parties guarantees the debt, which, in principle, does 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 the responsible parties from following, if applicable, the enforcement period with the corresponding surcharges.

The conclusion reached by the Supreme Court establishes the criterion to be followed according to the situation of the debt in the principal debtor (emphasis added) and forms the following case law in response to the question of appeal:

"The doctrine to be established, therefore, must be limited to stating that the guarantee provided by the main debtor can be transferred to those jointly and severally liable, so that they can obtain the suspension of the agreement of derivation of joint and several liability without the need to provide a guarantee in administrative proceedings, with the sole invocation that the main debtor provided the corresponding guarantee to respond to the payment of the tax debt;with the following proviso.

It is a different matter if the guarantee is not sufficient, in which case, "if the Chamber considers applicable to the doctrine defended by the appellant, the same would have to be qualified depending on the guarantees provided, allowing, where appropriate, a pronouncement by the Tax Administration 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 for the suspension to require the liable party to guarantee the outstanding debt not secured."

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