Skip to main content

The exoneration of unsatisfied public credit

The second opportunity or exoneration of unsatisfied liabilities is a possibility contemplated in the bankruptcy regulations so that natural persons, whether they are entrepreneurs or not, can benefit from a reduction in the amount of their debts, provided they meet the established requirements and under the conditions established. they stipulate.

This exemption mechanism has been subject to a profound transformation through Law 16/2022, of September 5, reforming the consolidated text of the Bankruptcy Law, both in the conditions and forms of access to it, and in the credits. that may be affected, among other relevant modifications.

Also in the part that refers to the impact of the exemption on public credits that are pending payment, there has been a significant alteration of the regulation. Since the entry into force of the modifications contemplated in the aforementioned Law, a partial exoneration of the credits whose collection management corresponds to the Tax Agency and the General Treasury of Social Security is feasible.

For this to occur, it will be necessary for the debtor to have access to the exoneration mechanism, which is prohibited in the case of, among others, the following people:

  • Those sentenced by a final sentence to custodial sentences for certain crimes in the ten years prior to the request for exoneration, unless their criminal responsibility has been extinguished and they have paid the pertinent pecuniary responsibilities.

  • That in that period of ten years prior to the application for exemption they had been sanctioned by a final administrative resolution for very serious tax, social security or social order violations (or serious ones with a penalty of more than 5,000 euros), or when in the same period within a period of time, a firm agreement on the derivation of liability would have been issued, unless they had fully satisfied their liability.

  • That your bankruptcy has been firmly declared guilty or, in the ten years prior to the request for exoneration, you have been declared an affected person in the final judgment of qualification of the bankruptcy of a third party classified as guilty, unless on the date of submission of the application for exoneration would have fully satisfied its responsibility.

  • That they have failed to comply with the duties of collaboration and information with respect to the bankruptcy judge and the bankruptcy administration.

  • Who have provided false or misleading information or have behaved recklessly or negligently when incurring debt or discharging their obligations.

Once the subjective scope of access to the exemption has been delimited, it is necessary to determine what type of debts may be affected by this mechanism, establishing various exceptions in the rule, among which the following debts can be mentioned: Exemption is not extended:

  1. Debts for non-contractual civil liability, for death or personal injury, as well as for compensation derived from work accidents and occupational diseases.

  2. Debts due to civil liability derived from crime.

  3. Food debts.

  4. Debts for salaries corresponding to the last sixty days of effective work carried out before the declaration of bankruptcy in an amount that does not exceed three times the minimum interprofessional salary, as well as those that would have been accrued during the procedure, provided that their payment had not been assumed by the Salary Guarantee Fund.

  5. Debts for public law credits. However, debts for which the Tax Agency is competent to manage collection may be exonerated up to the maximum amount of ten thousand euros per debtor (for the first five thousand euros of debt the exoneration will be complete, and from this figure the exoneration will reach 50 % of the debt up to the maximum indicated). The aforementioned limit is joint with the Foral Treasury. For debts due to social security credits, the exemption applies in the same way as those managed by the Tax Agency.

    The exempt amount, up to the aforementioned limit, will be applied in reverse order to the priority legally established in this law and, within each class, depending on its seniority.

  6. Debts for fines to which the debtor has been sentenced in criminal proceedings and for very serious administrative sanctions.

  7. Debts for legal costs and expenses derived from the processing of the exoneration request.

  8. Debts with real guarantee, whether for principal, interest or any other concept owed, within the limit of the special privilege.

In cases where the subject meets the established requirements, they must choose one of the modalities that the law configures for exemption:

  1. Subject to a payment plan without prior liquidation of the active mass , a novelty of Law 16/2022 being the fact that the exoneration does not imply the prior liquidation of the active mass of the debtor.

    The duration of the payment plan will be, in general, three years (five years when the habitual residence of the debtor and his family is not made, or when the amount of the payments depends exclusively or fundamentally on the evolution of income and resources available to the debtor), although creditors may request modification of the plan if there is a significant alteration in the debtor's economic situation or request the revocation of the exoneration if the debtor fails to comply with the plan.

    The part of the liability that is considered exonerable and that will remain unsatisfied in accordance with the plan is exonerated.

  2. With liquidation of the active estate .

Any affected creditor could request the revocation of the exemption granted if it is proven that the debtor has hidden the existence of assets, rights or income, if the debtor's economic situation substantially improves due to inheritance, legacy or donation, or due to a game of luck. , invitation or chance, during the three years following the exoneration, or if at the time of the request a criminal or administrative procedure was being processed and within the three years following the exoneration a final conviction or final administrative resolution was issued (in relation to the crimes, infractions or derivations of responsibility mentioned above).

The debtor could submit new requests for exoneration, once the period of two years has elapsed from the definitive exoneration with a payment plan, or five years from the resolution that granted it in the event of liquidation. These requests will not affect in any case the public credit, which can only be exonerated once.