The judgment of the European Court of Human Rights in the case of Latorre Atance v. Spain, decision of 18 December 2025 of Section 5, application no. 33818/22This represents the first contact of the Strasbourg Court with the liability of article 42.2 a) LGT, a central element in the fight against fraud and simulation to the detriment of public credit.

The National Court issued unduly divergent rulings on the respective responsibilities of Article 42.2 a) LGT to three insolvency administrators, and what the plaintiff sought was the application to them of both the civil and criminal aspects of Article 6 § 1 of the European Convention on Human Rights.

We want to emphasize this: an attempt was made to apply the criminal part of the European Convention on Human Rights to a responsibility under Article 42.2 a) of the General Tax Law, and this was based on the Engel criteria, emphasizing, to affirm its punitive nature, the inclusion of sanctions in the scope and illusory nature of reimbursement in a situation of insolvency.

The ECHR states on three separate occasions that we are dealing with civil liability for unlawful conduct in relation to the debtor's assets and that this responsible party is neither held liable for tax debts, nor treated as a taxpayer, nor is his liability based on his ability to pay. That is why, to resolve the controversy, the Court decides, it is sufficient to refer to the civil part of the Agreement.

And despite this forcefulness, the reality has been quite different. view offered by certain economic press, which in our opinion erroneously told us that —emphasis ours—:

"The Strasbourg judges clarify that, although the origin is a tax debt, the derivation ofliability has a “civil” and patrimonial naturesince it directly affects the finances and professional reputation of the individual, who is not the original taxpayer, but athird party who is held almost to a punitive standard of responsibility. Therefore, the guarantees of a fair trial must be applied with the utmost rigor.

This exemplifies the problem or paradox we are detecting, since on the one hand a solid consensus has been built around the non-punitive but compensatory nature of this liability and on the other hand, in daily practice, the allegations and claims of its certain and undoubted punitive nature do not yield in the slightest, most often seasoned with citations not to jurisprudence but to dissenting opinions and mereobiter dicta, known to all, and no less stentorian than solitary.

All that's left is to be patient and wait for the storm to pass. We now want to outline the consensus that has been forged on this issue by the most authoritative voices.

HeCouncil of Statein it section XII of its 2024 reportThere has been extensive discussion on how the liability under Article 42.2 a) of the General Tax Law should be understood, and we do not want to go to the extreme ofRoma locuta causa finitaBut I do want to warn that this is a voice that must be listened to with the utmost attention and respect.

In point 1 of this section XII, we are offered a relevant analysis of the legal nature of the person responsible for articles 41, 42 and 43 LGT, specifying this study for the figure of article 42.2 a) LGT. Thus, it defines it as a subjective responsibility based on the commission of a civil wrong in fraud of the creditor Treasury, which is linked to article 1,902 CC and which offers the Administration an equivalent compensatory result to that offered by the Paulian remedy.

The Civil Chamber of the Supreme CourtFor years it has been countering the self-serving attempts to shift tax responsibilities into the realm of sanctions, and has already refuted such claims in six rulings.

We will highlight the Supreme Court ruling of November 4, 2025, Civil Chamber, Section 1, Cassation appeal 7897/2021 – ECLI:ES:TS:2025:4867,because it refers to a responsibility under article 42.2 b) LGT. In its FJ 2 point 3 it defines it as compensatory or remedial and tells us that it is not a sanction but a responsibility that stems from an obligation to compensate for the damage caused by non-compliance with the seizure order issued by the AEAT.

The Administrative Chamber of the Supreme Court—beyond any individual vote and any reflectionobiter dicta—, when the question of its alleged punitive nature has been openly raised, it has never hesitated to deny such a thing, without ambiguity, without nuance.

These are —or should be known— the Supreme Court rulings of April 28, 2023, Administrative Law Chamber, section 2 Cassation appeal 546/2021 – ECLI:ES:TS:2023:1848and Cassation appeal 72/2021 – ECLI:ES:TS:2023:1849, in which it was established as jurisprudential doctrine "that the declaration of joint and several liability for the cause provided for in art. 42.2.a) LGT does not have a sanctioning nature and, therefore, the principle does not applyne bis in idemthat prevails in sanctioning law."

It is our conclusion that this responsibility is "something else," it is a compensatory response to creditor fraud and simulation, and that is why in it there is no hint of a sanctioning nature, as there is not, nor can there be, in the Paulian response or in the nullity for simulation, —civil remedies that the Collection is using with invariably successful— however much some may insist otherwise.