Supreme Court Judgment No. 130/2023, of February 2, appeal for cassation No. 5225/2020, has dismissed the appeal filed by the State Attorney's Office against the Judgment of June 9, 2020, issued by the Seventh Section of the Administrative Litigation Chamber of the National Court in appeal No. 69/2019.

The aim of this instance was to exclude from the list of debtors of the Public Treasury a liquidation linked to a crime issued under the provisions of art. 305.5 of the Criminal Code and Title VI of the General Tax Law.

The Administration had considered that said liquidation met the requirements of art. 95 bis LGT, since the amount of the debt pending payment exceeded one million euros (the amount in force at the date of publication of the list) and said debt had not been satisfied during the voluntary payment period. Although the National Court ruled in favour of the Administration, the party harmed by the ruling appealed to the Supreme Court, which, in upholding the appeal, established the following doctrine:

1) The settlements established by the tax authorities under art. 250.1 and related provisions of the LGT do not meet the legal requirements of article 95 bis LGT, as interpreted by this Court, so that the debtor may be included, in the case of non-payment, in the list of defaulters regulated in the aforementioned provision, given the instrumentality of such settlements to the results of the criminal case.

2) In such cases, only a criminal conviction for a crime against the Public Treasury would allow the inclusion of the debtor subject to such liquidations, regardless of whether the debt was suspended or not.

The Supreme Court thus echoes two previous rulings, from the same Chamber, of January 20 and 25, issued in cassation appeals 1467/2021 and 465/2021, which linked the appropriateness of the publication of the list with the observance of the rights of citizens as set out in our Constitution, in the European Charter of Fundamental Rights and in the European Convention on Human Rights. Subjects publication to a judgment of proportionality taking into account the principle of primacy of EU law in harmonized matters regarding the protection of personal data.

Our Supreme Court generally requires the finality of debts and penalties that are to be published and, specifically with respect to settlements linked to crimes, points out that by their nature they are not suitable acts to create a tax debt that allows the debtor to be included, due to non-payment, in the list of art. 95 bis LGT.

A critical analysis of the judgment is not the object of this commentary: The Supreme Court has established criteria regarding the requirements that tax debts and penalties must meet in order to be published in the list of debtors to the Public Treasury, and the Administration must adhere to such criteria. We would like to reflect on the notes you have made regarding the act that was intended to be published, the liquidation linked to a crime, since it refers to its instrumental position at the service of the criminal case and, consequently, to its nature, different from any other administrative act provided for in art. 1 of Law 39/2015 and Law 29/1998: “it does not even establish a tax debt protected by the presumption of legality enjoyed by acts of the Administration subject to administrative law,” says the TS. And this is because it is the criminal judge who is responsible for setting the amount defrauded in the sentence, with the settlements linked to crime being vicarious of the criminal case and dependent in all respects on the fate of the latter, apart from the notion of tax debt, for the purposes of art. 95 bis LGT.

Well, if according to this Supreme Court ruling, in the same terms as 131/2023 of the same date, the settlements linked to a crime do not give rise to tax debts in the strict sense since, ultimately, it is the criminal judge who determines the defrauded amount, the administrative prescription rules provided for in art. 66 LGT will not be applicable either. It should not be overlooked that in these cases the Administration provisionally sets the amount of tax debt and may demand its payment, but the administrative action will be subject to the outcome of the criminal proceedings. And therefore, the conviction in this case by the criminal judge will not be the result of the right of the Administration to determine the debt through the appropriate liquidation, ex art. 66 LGT, but of the ius puniendi of the State, exercised through the judicial bodies.

In other words, the fact that there is no application of taxes or exercise of the sanctioning power - incompatible with the criminal power - determines the non-application of articles 66 and following of the General Tax Law regarding the system of collection of the amount defrauded from the Public Treasury and finally determined by the criminal judge. A good example of the above is the inadmissibility of the return of amounts corresponding to administratively prescribed debts when they have been paid precisely in order to assess the voluntary regularization referred to in art. 252 LGT and 305.4 CP.

And since it depends on a possible conviction and the collection of the defrauded amount is under judicial control, the applicable statute of limitations will be that established for crimes against the Public Treasury, a criterion that is also supported by the treatment of these debts in the bankruptcy field, equating the liquidation linked to the crime and the civil liability derived from it, both as contingent credits, which depend on a possible conviction, and both privileged in their entirety, compared to the rest of the tax debts that, when they have been challenged, are considered subject to a resolutory condition and in which the privileged nature of their credit is limited to 50% of its amount.