The position of the AEAT in insolvency proceedings

Liquidity problems with the viability of the bankrupt company

Application of article 245.3 of the TRLC and the possibilities of modifying the maturity criteria in credits against the estate.

Article 245 of the TRLC includes in its section 2 the rule of payment on the due date of the credits against the estate , including in its section 3 the possibility that the bankruptcy administration may alter the criterion of payment on the due date “ in the interest of the bankruptcy if the active estate were sufficient to satisfy all the credits against the estate ”.

In turn, the aforementioned article contains a very important caveat: “The postponement of payment of credits against the estate may not affect credits for food, labor credits, tax credits or social security credits” .

The reason for this exception is that tax credits are unavailable, in accordance with the provisions of article 18 of Law 58/2003, of December 17, General Tax Law. The defense of these credits is protected by a general interest, unlike credits held by private creditors. The tax authorities cannot agree that the payment of their debts be made in a manner other than that provided for in the Law and the implementing regulations.

Furthermore, experience has shown that, prior to the reform carried out in article 84.3 of the LC by Law 38/2011, of October 10, reforming Law 22/2003 (immediate antecedent of the current article 245 of the TRLC), the postponement of payment of public credits against the estate was a frequent practice, despite the fact that it was already established that they should be satisfied at their respective due dates. Payment of private creditors' debts was attended to before public debts.

On the other hand, it should be noted that in article 250 of the TRLC a payment order for credits against the estate is contemplated that is different from that regulated in article 245 (when the bankruptcy administration estimates that the assets are insufficient to pay them and communicates this to the bankruptcy judge). In this payment order, the maturity of the credits against the estate is no longer taken into account and preference would be given to the payment of other categories of credits before the group in which the public credit would be found. Therefore, if the bankruptcy administration detects that there will not be sufficient assets to satisfy the credits against the estate in accordance with article 250 of the TRLC, it must make this known to the Court, and from that moment on, a payment order is contemplated in which the tax credits are postponed.