The position of the AEAT in insolvency proceedings

Offsetting ex officio.

Offsetting of credits against the estate by the AEAT.

The controversial issue regarding the offsetting of claims against the estate has been resolved by the Resolution of the Central Economic-Administrative Court (hereinafter TEAC) dated October 18, 2021, RG 1877/2021, issued in an extraordinary appeal for the unification of criteria, in which the following criteria are established:

"1.- Article 58 of Law 22/2003, of July 9, Bankruptcy, is not applicable to credits against the estate.

2.- The prohibition of executions provided for in art. 55 of Law 22/2003, of July 9, Bankruptcy, operates on bankruptcy credits but not on credits against the estate.

3.- It is possible to individually enforce a debt against the estate and, consequently, offset it ex officio, once the liquidation phase of the bankruptcy has been opened.

4.- The compensation agreement is a merely declaratory act, to the extent that it is limited to declaring the extinction of a tax debt produced at an earlier time. This means that the tax authorities, having duly recognised their claim against the estate, do not have to exercise any action for payment with respect to the latter before the bankruptcy judge in accordance with the terms of article 84.4 LC to make effective their ex officio compensation agreement. In this case, it will be the bankruptcy administration or the potential affected creditors who, in view of the ex officio compensation agreement, may raise a bankruptcy incident if they consider that said compensation has altered the order of priority established by the bankruptcy regulations for the payment of credits against the estate. Hence, the review and eventual cancellation in the economic-administrative proceedings of an ex officio compensation agreement by the tax administration regarding a debt against the estate due to a breach of the bankruptcy regulations always requires the prior pronouncement to this effect by the Commercial Judge competent in the bankruptcy, through the resolution of a bankruptcy incident raised by the bankruptcy administration itself or by other creditors."

This was an appeal in which, by providing additional arguments, it was intended to overcome the binding criterion for the tax administration set out in the TEAC Resolution for the unification of criteria of February 26, 2019, RG 217/2018, which prevented the ex officio offsetting of debts against the estate in bankruptcy proceedings, forcing the tax authorities to first raise a bankruptcy incident before the bankruptcy judge.

The TEAC has estimated this new appeal raised on the issue, exceeding the criteria established in the aforementioned resolution of February 26, 2019 , the content of which is inserted in this new resolution, and unifying criteria in the opposite sense, which is binding on the Tax Administration in accordance with the provisions of article 242.4 of the LGT, therefore, in accordance with the TEAC Resolution of October 18, 2021, it is perfectly possible for the Tax Administration to carry out debt offset actions against the mass of subjects in bankruptcy proceedings .