A recent decision of the Regional Economic-Administrative Court of the Principality of Asturias (Spain) insists on the importance of motivating the guilt or negligence of the de facto or de jure directors, in order to derive liability for the infringements committed by the administered company.
The General Tax Law (“GTL”) regulates a series of cases in which the Tax Administration may address certain subjects other than the taxpayer as taxable parties for the latter’s debt. In practice, one of the most common cases of derivation of tax liability is that which affects de facto or de jure directors, for infringements committed by the managed company, as provided for in article 43.1.a) of the GTL.
This provision establishes that the de facto or de jure administrators of legal persons who, having committed tax offences, have not carried out the necessary acts that were their responsibility for the fulfilment of tax obligations and duties, have consented to the non-compliance by those who depend on them or have adopted agreements that make the infringements possible, may be declared vicariously liable for the tax debt. In these cases, their responsibility extends to sanctions as well.
In other words, the responsible party must have planned conduct revealing the absence of due diligence in the fulfillment of their tax obligations. We are not, therefore, dealing with objective liability that concurs by the mere fact of having the status of director of a company that has committed a tax infringement, but a certain conduct is required.
The Supreme Court has ruled on numerous occasions on this type of tax liability (for example, in its judgments of 5 June and 2 October 2023 – appeals 4293/2021 and 8791/2021, respectively-), in which it has shown that such liability is of a punitive nature, confirming what the Constitutional Court had already established in its judgment 85/2006, of 27 March, on the materially punitive nature of this liability.
Following these pronouncements of the High Court, the Central Economic-Administrative Court has issued resolutions of 14 March (5682/2021) and 17 June (6943/2021) 2024, in which it has established that the Administration is obliged to provide a certain explanation and reasoning of the conduct attributable to the administrator or of the absence thereof, revealing his lack of diligence, so that, once the attribution of liability has been made, the director can later have the possibility of refuting and, where appropriate, accrediting, the fact that said liability has been extinguished.
Following the criteria of the Central Economic-Administrative Court, the Regional Economic Administrative Court of the Principality of Asturias has recently issued a decision of 06 March 2025 (33-00640-2023), in a procedure in which Garrigues has participated, in which it has established that the Administration must indicate what specific conducts have been carried out by the director, which allow the individualization of his negligence or culpability in the commission of the infringements by the principal debtor. In the specific case analyzed, the court concluded that the Administration had not sufficiently accredited the subjective requirement required for the declaration of liability, so it annulled it.
Although this is a case-by-case matter that, as such, requires an individualized analysis, all these pronouncements reinforce the guarantee of the taxpayers against the action of derivation of tax liability enjoyed by the Administration, which must be exercised with respect for the rights of taxpayers and, in particular, that relating to the presumption of innocence that governs the sanctioning field.
