Social security contributions and claims against the insolvency estate in bankruptcy proceedings

The SC considers that in order for the Social Security contributions to be debts of the mass, the corresponding salaries must be essential for the liquidation and authorized by the judge.

The Social Security appealed requesting that the social security contributions corresponding to the unpaid salaries, which had been considered necessary expenses to conclude the liquidation and, therefore, pre-deductible, should have the same consideration.

The Court points out that, since the insolvency administration formally communicated the insufficiency of the active mass, in accordance with the provisions of paragraph 2 of Article 176 bis LC, this determined the operation of the priority of payments rule provided for in this provision.

This priority rule exists to avoid the arbitrariness of the insolvency administration when attributing the consideration of “credits essential to conclude the liquidation”, for the purpose of being satisfied in a pre-deductible manner and, therefore, prior to the rest of the credits, judicial authorization is necessary, obtained through the procedure of Article 188 LC, with a hearing of the interested parties. And, in the absence of express legal identification, it is required that it is the bankruptcy administration itself who identifies precisely what actions are strictly necessary to obtain cash and manage the liquidation and payment, and what the amount is, so that the bankruptcy judge, with a hearing of the rest of the creditors against the estate, assesses those circumstances that justify a pre-deductible payment.

In the present case, the social security contributions for the salaries of workers accrued after the notification of the insufficiency of the active mass, which according to the General Treasury of the Social Security have been considered essential expenses, it does not appear that the insolvency administration has requested the mandatory judicial authorization for the salaries to be considered essential expenses for the liquidation and therefore to be pre-deductible, so that if the insolvency judge declares in his sentence that he has not granted such authorization with respect to the salaries, it makes no sense to discuss whether the credit for the Social Security contributions should also be considered essential.

In any case, if these salaries were to be considered as pre-deductible expenses, in view of the fact that they remunerate work that was essential for the liquidation operations subsequent to the notification of the insufficiency of the active mass, for the same reason the Social Security contributions would also merit this consideration, since the services of certain workers that are considered essential generate not only the salary credit but also the credit corresponding to the social security contributions, since both have the same origin, they are the cost generated by that service that would have been considered essential to conclude the liquidation operations, without being able to distinguish between one and the other for these purposes, nor are the rules of priority of credits of article 176 bis. 2 LC applicable. 176 bis. 2 LC.

It is irrelevant in determining whether both are pre-deductible that this provision treats the salary credit and the social security credit differently because they are necessary expenses derived from a service that is essential to conclude the liquidation operations.

However, as mentioned above, the appeal cannot be upheld since the insolvency judge did not authorize the payment of salaries as essential expenses to conclude the liquidation operations.