The unsecured suspension upon receipt of a settlement from the Treasury, a step forward but not definitive

The Supreme Court has just handed down a judgment in relation to the unsecured suspension and way of urgency upon receiving a settlement from the Treasury. However, even though it is important, this judgment does not solve the practical and procedural problem that arises from the separation of the challenges of the agreement of inadmissibility and the providence of urgency to which it leads.

Article 233 of the LGT essentially provides for two types of suspension of the execution of the act subject to an economic-administrative claim:

In the tax system there is a so-called automatic suspension, that is, a right of the taxpayer to suspend the execution of an act, at least of its tax consequences, when it provides certain guarantees for the payment of the tax debt. In the absence of such guarantees , the claimant may: request the suspension by providing other guarantees, if it proves the impossibility of providing a guarantee or other form of guarantee with access to the automatic suspension, or by requesting the total or partial waiver of any guarantee, if it proves the impossibility of providing them and that the execution of the act would cause damages of impossible or difficult reparation.

The challenge of a sanction always involves the suspension of the sanction while it is not administratively firm.

The General Regulation regarding the administrative review of 2005 (RGRVA), in its article 46, provided that, upon request for the suspension with total or partial waiver of guarantees, the debt being in a voluntary period, it was suspended provisionally. However, Article 46.4 provided that the application had been examined, after the correction of the same, if it was rectified, when the existence of evidence of the alleged damages could not be deduced from the documentation provided. The regulation introduced a case of inadmissibility that seemed to rest in a previous substantive examination. In a subtle distinction, if there were indications but the damages were not credited, the dismissal proceeded; the lack of mere clues led to inadmissibility.

The debate was certainly not conceptual. The same article 46.4 of the RGRVA warned that the inadmissibility of the request for suspension meant that it was considered not submitted for all purposes. On the contrary, the application admitted for processing, the notification of the dismissal of the requested suspension, according to Article 42 of the RGRVA, opened a new voluntary payment period. Then, the inadmissibility led to a debt constraint because when the precautionary effects of the application were volatilized, the voluntary payment period would inevitably have elapsed when the process of inadmissibility was notified. In addition, the economic-administrative courts interpreted the RGRVA so that the generality of the cases in which the request for suspension without guarantees was rejected was inadmissible.

On this issue, the Supreme Court has ruled in the Judgment of December 21, 2017 (appeal No. 496/2017). The sentence has a double interest:

a) In the first place, it establishes as jurisprudence that in the cases described, when the documentation provided is not proven, even indiciaciamente, the existence of the damages invoked, neither can resort to a correction incident or inadmit the request, but dismiss it. The High Court does not share the administrative practice or in reality the normative mandate contained in article 46.4 of the RGRVA.

b) On the other hand, the judgment offers other aspects of interest. The High Court interprets Article 93 of the LJCA, in the new appeal, assuming that it is possible to establish a case law and dismiss the appeal in its entirety, confirming the judgment of instance; the plaintiff only requested the nullity of the inadmissibility to process, understanding that he had to be given the opportunity for a remedy, but for the Chamber it did not proceed either. On the other hand, the Supreme Court establishes the aforementioned jurisprudence but does not consider article 46.4 of the RGRVA illegal, nor, as it indicates, the Resolution of the Secretary of State of the Treasury of December 21, 2005. Enough, in the opinion of the Chamber, a conforming interpretation in the sense of the jurisprudence that is established.

As we said at the beginning, this important sentence does not solve the practical and procedural problem that arises from the separation of the challenges, because although this is the one that is really questioned it will be in the appeal against the first where the new doctrine is asserted with the consequence of that the order of urgency discussed by another party will also be void.