The position of the AEAT in insolvency proceedings

Filing self-assessments in case of lack of accounting

Need to report the crime defined in article 259.1.6 of the Criminal Code.

Occasionally, the bankruptcy administration encounters situations in which the bankrupt and its administrators fail to comply with the duty of cooperation and information provided for in Article 135 of the TRLC.

In particular, this lack of cooperation can lead to extremely serious consequences when accompanied by a failure to comply with the basic commercial and accounting obligations in carrying out the activity, which means that the bankruptcy administration cannot have access to the essential information to carry out the functions inherent to its powers, such as the filing of tax returns and self-assessments.

Neither bankruptcy legislation nor tax legislation contemplates that the described situation may exempt the bankrupt company from keeping accounts and from filing tax returns and self-assessments, so the bankruptcy administration must adopt the appropriate measures to comply with these obligations. The statement of the question refers to the fact that this is a necessary bankruptcy, that is, at the request of the creditors, but if a court order has been issued declaring bankruptcy it is because the analysis of the entity's income and expenses, as well as its assets and liabilities, have revealed a situation of insolvency and the possibility of suspending payments. Therefore, there is a starting patrimonial situation.

Given the knowledge of these facts, the response by the bankruptcy administration is provided for in article 443.5 of the TRLC, which states that substantial non-compliance with the obligation to keep accounts implies that, in any case, the bankruptcy will be classified as culpable, which must be requested by the bankruptcy administration in the qualification report to be submitted to the bankruptcy judge, with the consequences that this entails (possibility of disqualification of the affected persons and possibility of seizing their assets and rights).

Furthermore, there is the possibility of proceeding to immediately report the facts to the authorities of the criminal jurisdiction, since said conduct is classified as a crime of insolvency punishable by article 259.1 of Organic Law 10/1995, of November 23, of the Criminal Code, which provides:

"1. who, being in a situation of current or imminent insolvency, carries out any of the following acts will be punished with a prison sentence of one to four years and fine of eight to twenty-four months:

(...)

6. Fails to comply with the legal obligation to keep accounting records, keeps double accounting records, or commits irregularities in their keeping that are relevant to understanding his/her financial or patrimonial situation . Destroying or altering accounting books will also be punishable when this significantly hinders or impedes understanding of the financial or patrimonial situation.

7. Conceal, destroy or alter the documentation that the employer is obliged to retain before the expiration of the period to which this legal obligation extends, when this makes it difficult or impossible to examine or assess the debtor's real economic situation.

8. Prepare the annual accounts or accounting books in a manner contrary to the regulations governing commercial accounting, in such a way that it makes it difficult or impossible to examine or assess the debtor's real financial situation, or fail to comply with the duty to prepare the balance sheet or inventory within the deadline.

9. Carry out any other active or passive conduct that constitutes a serious breach of the duty of diligence in the management of economic affairs and to which a decrease in the debtor's assets is attributable or by means of which the debtor's real economic situation or business activity is concealed.

2. The same penalty will be imposed on anyone who, through any of the conduct referred to in the previous section, causes their own insolvency.”

Article 259.3 of the Criminal Code itself states that the commission of the acts referred to in section 1 is also a crime when they have been committed through negligence, imposing in this case a prison sentence and a fine of a shorter duration.

According to section 5 of the same article 259, this is a crime that can be prosecuted without waiting for the conclusion of the bankruptcy and without prejudice to its continuation, so there is no reason to justify that, given the knowledge of the facts constituting the same by the bankruptcy administration, the administration should not immediately file a complaint so that they can be analyzed by the competent bodies of the criminal jurisdiction.

If both actions are carried out by the bankruptcy administration, they will be taken into account by the Tax Administration, together with the rest of the concurrent circumstances, when assessing whether the necessary diligence has been exercised and determining the existence or not of tax liabilities arising from the failure to submit self-assessments due to the lack of accounting information, in accordance with the provisions of articles 41 and following of the LGT.