The position of the AEAT in bankruptcy processes
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Application of article 84.3 of the Bankruptcy Law and the possibilities of modifying the maturity criterion in credits against the estate.
Article 84.3 of the Bankruptcy Law (drafted by Law 38/2011, of October 10, reforming Law 22/2003) maintains the payment rule on the due date of credits against the mass , but introduces the possibility that the bankruptcy administration can alter the criterion of payment on the due date "when it considers it convenient for the interest of the bankruptcy and whenever it presumes that the active mass is sufficient for satisfaction of all credits against the estate.”
At the same time, the aforementioned article contains a very important reservation “this postponement may not affect workers' credits, food credits or even tax credits and Social Security" .
The reason for this reservation is that the tax credits are unavailable, in accordance with the provisions of article 18 of Law 58/2003, of December 17, General Tax. The defense of these credits is protected by a general interest, unlike the credits held by private creditors. The Tax Administration cannot agree that the payment of its credits is made in a manner other than that provided for in the Law and the implementing regulations.
Furthermore, experience demonstrated that, prior to the reform, the postponement of the payment of public credits against the estate was a frequent practice, despite the fact that it was already established that they must be satisfied on their respective due dates (art. 154.2 LC prior to reform). The payment of credits from private creditors was attended to before public credits.
On the other hand, it must be taken into account that section 2 of article 176.bis LC contemplates an order of payment of credits against the estate different from that regulated in article 84 (when the bankruptcy administration estimates the insufficiency in the active estate to pay them and communicates it to the bankruptcy judge, who must make it evident in the judicial office to the parties in person). This order of payment no longer takes into account the maturity of the credits against the estate and preference would be given to the payment of other categories of credits before the group of other credits against the estate, which appears last, and is in the that public credit would be found. So if the bankruptcy administration detects that there will not be enough active assets to satisfy the claims against the assets in accordance with article 176.bis, it must make this evident to the Court, and from that moment a payment order is contemplated. in which tax credits are postponed.