The position of the AEAT in bankruptcy processes
Skip information indexPresentation of self-assessments in case of lack of accounting
Need to report the crime defined in article 259.1.6 of the Penal Code.
Sometimes, the bankruptcy administration encounters situations in which the bankrupt and its administrators fail to comply with the duty of collaboration and information contemplated in article 42 of the Bankruptcy Law.
In particular, this lack of collaboration can cause extremely serious consequences when it is accompanied by a failure to comply with basic commercial and accounting obligations in carrying out the activity, which determines that the bankruptcy administration cannot have the essential information to carry out its functions. inherent to its powers, such as the presentation of tax returns and self-assessments.
Neither the bankruptcy legislation nor the tax legislation contemplate that the situation described may exempt the bankrupt company from the maintenance of accounting and the presentation of tax returns and self-assessments, so the bankruptcy administration must adopt the corresponding measures for the compliance with said obligations. The formulation of the question states that it is a necessary bankruptcy, that is, at the request of the creditors, but if a judicial order has been issued declaring the bankruptcy it is because the analysis of the income and expenses of the entity, as well as its assets and liabilities, have revealed a situation of insolvency and the possibility of suspending payments. Therefore, there is a starting equity situation.
Given the knowledge of these facts, the response by the bankruptcy administration is provided for in article 164.2.1 of the Bankruptcy Law, which states that substantial non-compliance with the obligation to keep accounting implies that, in any case , the bankruptcy will be classified as guilty, which must be urged by the bankruptcy administration in the qualification report to be presented to the bankruptcy judge, with the consequences that this entails (possibility of disqualification of the affected persons and possibility of seizing their goods and rights).
Furthermore, there is the possibility of immediately reporting the facts to the criminal jurisdictional authorities, as such conduct is classified as a crime of insolvency punishable in article 259.1 of Organic Law 10/1995, of November 23, of the Penal Code, which provides:
"1. Whoever, finding themselves in a situation of current or imminent insolvency ## , engages in any of the following behaviors will be punished with a prison sentence of one to four years and a fine of eight to twenty-four months:
(...)
6. Fails to comply with the legal duty to keep accounts, maintains double accounting, or commits irregularities in its keeping that are relevant to the understanding of its patrimonial or financial situation . The destruction or alteration of the accounting books will also be punishable when this makes it significantly difficult or impedes the understanding of your property or financial situation.
7. Hide, destroy or alter the documentation that the businessman is obliged to keep before the expiration of the period to which this legal duty extends, when this makes the examination or assessment of the debtor's real economic situation difficult or impossible.
8. Formulate the annual accounts or accounting books in a manner contrary to the regulations governing commercial accounting, in such a way that it makes difficult or impossible the examination or assessment of the debtor's real economic situation, or fails to comply with the duty to formulate the balance sheet or inventory on time.
9. Perform any other active or omissive 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 through which the real economic situation of the debtor is hidden. or your business activity.
2. The same penalty will be imposed on anyone who, through any of the conduct referred to in the previous section, causes their insolvency situation.”
Article 259.3 of the Penal Code itself states that the carrying out of the acts reflected in section 1 is also a crime when they have been committed recklessly, imposing in that case a prison sentence and a shorter fine.
As clarified in section 5 of the same article 259, this is a crime that can be prosecuted without waiting for the conclusion of the competition and without prejudice to its continuation, so there is no reason to justify that, given the knowledge of constitutive facts of the same by the bankruptcy administration, there is no immediate complaint by said administration so that they are subject to analysis 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, along with the rest of the concurrent circumstances, when assessing whether the necessary diligence has been taken and determining the existence or not of tax responsibilities derived from the failure to submit self-assessments due to the lack of accounting information, in accordance with the provisions of articles 41 et seq. of the LGT.