In the strategic plan of the Tax Agency 2024-2027, within its core axes, along with taxpayer assistance, preventive actions and the communication strategy, fraud control appears, as it could not be otherwise.

Within it, in subsection c.10 reference is made to “complex control actions in matters of collection”, where we can read, as something new, that:

“From another point of view, reference should be made to the exercise of civil actions in defense of public credit. These are cases in which the debt recovery mechanisms with which the Tax Agency is equipped are shown to be insufficient to achieve the desired goal, which is why it must resort to judicial protection to achieve the same, through the exercise of actions in the civil jurisdictional field. Thus, it is a fact that the best collection defense of the rights of the state Public Treasury makes it necessary to resort to civil actions."

This deserves comment and reflection and perhaps we should modulate the response that, from the collection of public credit, we are giving to creditor fraud.

If we go to the pan-Hispanic dictionary of legal Spanish we will see that “creditor fraud” is defined as an act of the debtor, generally simulated and rescindable, that leaves the creditor without the means of collecting what is owed to him.

These ideas are not complex and should not be complicated. Every creditor hopes to collect what is owed to him and to do so he relies on his debtor's assets. The problem arises when this patrimony disappears and not due to chance, but due to acts of the debtor and his trusted group, which, as was said, leave the creditor without the means to collect what is owed to him.

When this happens to the private creditor, civil jurisprudence has told us that creditor fraud may serve as a basis for rescission action, for nullity due to contractual simulation due to lack of cause, and furthermore, for an action for nullity due to illicit cause. .

This can be complex and we must explain these three remedies that civil law provides to the frustrated creditor:

• In absolute simulation, the contract by which the goods left the debtor's assets, simply and simply, does not exist - let's think of a sale without a price - since, lacking a cause, it suffers from an insurmountable defect.

• In nullity due to illicit cause, the contract being real and existing, the illicit purpose sought by both parties has been elevated by jurisprudence to the category of illicit cause determining the nullity of the contract. In this figure, the fraud of creditors is not the consequence of the contract, but rather its cause which, due to its illegality, determines, from its genesis, its structural ineffectiveness.

• The Paulian remedy is perhaps the most complex, since the contract is born perfect and valid, but becomes fraudulent due to the damage it ultimately causes to the creditor. In this remedy, the important thing is the damage and not the intention, with diligence to know that damage can be caused more than the exact degree of knowledge, the remedy becoming objective in the case of lucrative or gratuitous provisions or title.

In conclusion and so that it is understood, creditor fraud can be sought and desired by the debtor and by members of his trusted group who collaborate with him in hiding the assets from the creditor. In this case the remedy is the nullity of the contracts, either due to lack of cause, or due to illicit cause, and the consequence is the return of the assets to the debtor and the reconstruction of the property guarantee that the creditor enjoyed.

And if the fraud of creditors is not a cause, but a mere consequence, if the important thing was not the intention, but the damage caused in the end, the remedy is the Paulian one, which does not reconstruct the debtor's assets, but rather operates the repristinatory effect of the seizure, that is, it respects the dispositive act carried out, but allows the injured creditor to proceed with the seizure of the property in the assets of the acquirer who, despite not being a debtor, must suffer the seizure.

This is basically the civil protection scheme against creditor fraud, and what happens is that when the person who suffers the fraud is the public creditor, being invested with self-protection as it is, it has its own and specific remedy at its disposal, which is the article 42.2 a) LGT.

This provision tells us that those who, with the purpose of preventing the action of the Tax Administration, were responsible for or collaborated in said concealment, will be jointly and severally liable for the payment of what is due and up to the amount of the value of the hidden assets and rights.

We clearly see that we are talking about the same thing, creditor fraud, that the conduct suffered by the creditor is the same and that what differs is the remedy applied.

That is why the already contentious jurisprudence has told us that the power contained in article 42.2 a) LGT allows the protection of public credit without the need to resort to nullity or rescission actions.

And it is that, what for the private creditor are actions of nullity or rescission to be exercised before the civil judge, which allow either the reconstruction of the assets or the repristination of the seizure, for the public creditor it is a power that, with self-protection, allows the declaration of debt in the person responsible for the damage, with the limit of the value of the hidden assets.

But we must understand that the Administration has all these remedies at its disposal, that perhaps the declaration of responsibilities should be, for effectiveness, its first option, but that, if this route fails, nothing prevents the use of any other of those that the law establishes. at your disposal, such as revocation or annulment due to simulation, and so we can read it in STS 04-24-2013, Civil Chamber, cassation appeal 2108/2010.

And this is what the aforementioned paragraph of the strategic plan of the Tax Agency 2024-2027 tells us, that for the best collection defense of the rights of the state Public Treasury it is necessary to resort to civil actions, and to illustrate this idea, We offer two examples:

• It may happen that the right to declare tax liability under article 42.2 a) LGT has expired.

  Well, if its requirements are met, nothing prevents the Tax Administration from resorting to an action for annulment due to simulation which, as everyone knows, is by definition imprescriptible as can be read, for example, in STS 11-19-2015, Civil appeal 1329/2014.

• It may happen that the conduct that causes damage to the public creditor involves someone from whom the subjective element of article 42.2 a) LGT cannot be predicated, think of a donation made, in fraud of the public creditor, to a minor.

  Well, nothing prevents the Administration from resorting to the Paulian remedy which, in the case of gratuitous acts, dispenses an objective remedy, without the need to resort to the level of conscience or guilt, as STS 07-09 told us. 2012, Civil appeal 560/2010.

In summary and conclusion, we must reflect on the fact that for the best collection defense of the rights of the state Public Treasury it is necessary to resort to civil actions.