Multiplication of interest on arrears and derivation of liability
30/05/2022 Uría Menéndez (uria.com)
The tax liability regime is characterised by the existence of a single tax debt that is discharged when the principal debtor or any of the parties that are jointly and severally liable with it pays the tax owed. The procedures that the tax authorities follow to collect payment from each of these parties differ (e.g. deferring payment and enforcement proceedings). The tax authorities also used this “individualised” payment collection system to impose a surcharge on each of the liable parties who did not pay the debt (or suspended its payment) within the voluntary payment period. For example, if there were six parties liable for a debt of 100, the tax authority would impose a surcharge on each of them, and in so doing could collect a higher amount in surcharges than the principal debt (20% of 100 from each of the six liable parties amounts to a total of 120 in surcharges).
The Supreme Court has recently declared this practice null (in judgment 2189/2018 of 10 December 2020) on the grounds that the tax authorities were being unjustly enriched. The Supreme Court reasoned that there is one single debt, not a debt for each of the jointly and severally liable parties, and because the surcharge is an obligation that is ancillary to the main obligation (to pay the debt), only one surcharge is payable.
In our opinion, this criterion is fully applicable to interest on arrears, since this is also an ancillary obligation to the principal debt. However, as they have done with surcharges, the tax authorities have in some cases charged various of the liable parties interest on arrears, despite the fact that there was just one tax debt that was not settled in the voluntary payment period.
Hopefully it will not be necessary to go to the Supreme Court to put a stop to this practice and the tax collection entities themselves will acknowledge these limits – something that at the very least we would expect the economic-administrative courts to do in their review proceedings.