The position of the AEAT in bankruptcy processes
Skip information indexOffsetting ex officio.
Compensation of credits against the estate by the AEAT.
The controversial issue regarding the compensation of credits 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 execute a debt against the estate and, consequently, compensate it ex officio, once the bankruptcy liquidation phase has 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 that occurred at a previous time. This means that the Tax Administration, having duly recognized its claim against the estate, does not have to exercise any payment action with respect to it before the bankruptcy Judge under the terms of article 84.4 LC to make its ex officio compensation agreement effective. Where appropriate, it will be the bankruptcy administration or the possible 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 mass. Hence, the review and eventual annulment in the economic-administrative way of an ex officio compensation agreement of the Tax Administration regarding a debt against the estate due to violation of the bankruptcy regulations always requires the prior ruling to that effect by the Judge of "the Commercial Court competent in the bankruptcy, through the resolution of a bankruptcy incident raised by the bankruptcy administration itself or by other creditors."
It 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 compensation of debts against the estate in a bankruptcy process, forcing the Tax Administration to previously raise a bankruptcy incident before the bankruptcy judge.
The TEAC has considered this new appeal raised on the issue, , surpassing 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 compensation actions against the mass of subjects in bankruptcy proceedings .