Classification of credit for tax withholdings communicated late
The TS understands that, given that the appeal ruling acknowledged that the credit reported late by the AEAT was recorded in the debtor’s documentation, it should not be classified as subordinate but as a credit with general privilege, since it is tax withholding.
In the insolvency proceedings of a SRL, the AEAT challenged the list of creditors because it did not agree with the classification made of a part of its credit, and at the same time took the opportunity to communicate another credit that it had against the bankrupt tax withholdings
This second loan was reported late, taking advantage of the challenge of the list of creditors, but in time to be recognized, in accordance with the provisions of the LCon art.92.1.
In accordance with said precept, as a general rule, these credits communicated late must be classified as subordinated loans. It comes to be a penalty or negative consequence of the debtor’s lack of diligence when complying with the requirement stipulated in the LCon art.21.1.5º and 85.1, which impose on the creditors the duty to notify the insolvency administration about the existence of your credits within a month.
The general rule for the subordination of late-reported credit has a series of exceptions, which allow it to be classified “as appropriate” according to the rest of the rules on credit classification. One of these exceptions affects “the credits whose existence results from the debtor’s documentation”. According to the TS, this exception must be interpreted as follows:
• It means that there really was proof of the existence of the credit in the debtor’s documentation, not that there should be.
• By “existence” it must be understood that, as it was recorded in the credit documentation, it was evident that it was pending payment and was required.
• It is necessary that the proof of the existence and enforceability of the credit is undoubted, so that if there were reasonable doubts in this regard, its final recognition after the incident of credit objection would entail the subordination of the credit.
• And, finally, the proof of the credit in the debtor’s documentation must be such that, given the circumstances of the case (number of creditors, characteristics, documentation in which it appears …), it was clear that it could not go unnoticed to the insolvency administration when preparing the list of creditors.
In this case, as the judgment appealed expressly recognizes the proof of the credit in the tender documents, the credit can not be subordinated and has to be classified according to art.91.2º LCon as credit with general privilege, because it is tax withholdings.