Article 233 of the General Tax Law regulates the suspension of the implementation of the contested act by economic and administrative means, and paragraph 3 reads as follows:
“3. When the interested party cannot provide the guarantees necessary to obtain the suspension referred to in the previous section, the suspension will be agreed upon prior provision of other guarantees that are deemed sufficient, and the competent body may modify the resolution on the suspension in the foreseen cases in the second paragraph of the following section. ”
In this paragraph, the opportunity arises for the small taxpayer, mostly small and medium enterprises who do not have access to obtain a bank guarantee and therefore cannot offer the Tax Agency other guarantees.
The guarantee offered by the taxpayer may be, for example, the main asset of the company, which is the asset that ultimately generates the turnover and economic performance of the company, provided that said asset is registered in the name of the company and that it is not a self-generated intangible asset, but acquired, and that consequently can be sufficient guarantee for the suspension of the execution of a tax debt. For example, a web domain owned by the company.
Indeed, a domain can be a unique factor in the economic generation of the company and produce the economic returns on which precisely the action of the tax administration revolves: it has the legal coverage granted by the Intellectual Property Law and, therefore, It is possible to constitute a movable mortgage on the same as established in Articles 1 and 12 of the Law of December 16, 1954 on movable mortgage and pledge without displacement of possession. Thus, it seems to have sufficient entity to be able to become a guarantee.
However, the most common scenario is that the Tax Administration considers that said asset as unfit as it is not easy to constitute a unilateral mortgage and register it properly.
Indeed, the Movable Property Registry generally rejects the registration of the mortgage granted by the taxpayer on a domain in favour of the Tax Agency, as it considers that it is not competent or lacks real significance.
This position is debatable and highly objectionable, in the absence of a rule expressly allowing the inclusion of digital assets among mortgage assets, an inevitable fact since these are gaining more importance, sometimes more than the classic ones. Take, for example, Apple’s digital assets and their priceless value.
Nevertheless, if the will of the taxpayer is to subject its revenue generating asset in favour of the AEAT, this section of article 233.3 of the LGT should be consulted and it is necessary for the Tax Agency to accept them. In this sense, the behaviour of the Tax Administration in relation to the formalization of a guarantee is usually passive, receptive, due to the inertia of the collection procedure, and that is not the position that, in our opinion, should occupy.
The subjection of the asset to the tax debt for the duration of its administrative or jurisdictional review can, in short, take many forms – pledge with or without displacement, affection, prohibition to dispose, etc … But here it is the Administration that has to offer solutions.
What remains for the taxpayer after this refusal by the AEAT and the Register of Movable Property? In such cases, the suspension should be allowed to continue without the provision of a guarantee. While understanding that this solution is an exceptional remedy, it may find its basis in the link that must exist between the tax law regarding suspension and effective judicial protection, since the purpose of this is to allow the taxpayer not to be forced to satisfy the debt before and while its administrative or judicial review is carried out and, of course, to offer a safe framework for the effective development of the suspension through “other guarantees”.
Eugenia Pérez
Partner. Business Department
