Customer credit garnishment due diligence has been received
In the event that there was no contract of any kind that regulates the commercial relationship or exchange effects in progress with the affected client,
Would this one not be subject to the seizure issued in that proceeding?
Article 169.2. b) of Law 58/2003, of 17 December, on General Taxation (BOE of 18 December), hereinafter LGT, states that:
“2. If the Administration and the taxpayer have not agreed on a different order by virtue of paragraph 4 of this article, the assets of the obligor shall be seized, taking into account the greater ease of their disposal and the lesser onerosity thereof for the obligor.
If the criteria set out in the preceding paragraph are impossible or very difficult to apply, the assets shall be seized in the following order:
b) Credits, bills of exchange, securities and rights realizable on the spot or in the short term.”.
Likewise, Article 81 of the General Collection Regulations approved by Royal Decree 939/2005, of 29 July 2005, (Official State Gazette of 2 September 2005, hereinafter RGR, states that
In the case of receivables, effects and rights realizable in the act or in the short term not regulated in the preceding article, the procedure shall be as follows:
(a) In the case of unsecured claims, bills of exchange and unsecured claims, the debtor shall be notified of the seizure order and the debtor shall be informed that the payment made to the obligor shall not be discharged thereafter. When the encumbered claim or right has expired, the debtor of the obligor shall pay the amount to the Treasury until the debt has been paid. Otherwise, the credit will be assigned to this debt until maturity, if it is not repaid. If the receivable or entitlement involves successive payments, the payer shall be ordered to pay the respective amounts into the Treasury up to the limit of the amount due, unless he receives notification to the contrary from the collecting society.
(b) In the case of secured credit claims, notice of attachment shall also be given to the guarantor or, where appropriate, the holder of the asset or right offered as security, which may be deposited until the expiry of the credit claim. Once the credit has expired, if the debt is not repaid, the guarantee shall be enforced in accordance with the procedure laid down in Article 74.”.
The consultant's statements do not indicate the existence of any credit guarantee. It is therefore considered that the claims subject to the consultation are unsecured.
In relation to these claims, the resolution of 27 October 2016 of the Central Economic and Administrative Court issued by virtue of an extraordinary appeal for the unification of criteria filed by the Director of the Revenue Department of the State Agency of Tax Administration states in its fourth legal basis that
In these resolutions, the possibility of attaching future claims that have not yet arisen and of uncertain future existence is established as unfeasible because it contravenes what has been established, both in the RGR and the provisions of article 588 of Law 1/2000 on Civil Procedure, which provides that the seizure of goods and rights whose effective existence is not recorded shall be null and void.
Article 81 a) of the RGR states that it is possible to seize accrued credits whose repayment period has not yet expired, in which case this credit will be assigned to the debt until its maturity if it is not otherwise settled; once it has expired, it will be applicable in the preceding paragraph which indicates that the person or entity debtor of the obligor must pay the amount to the Treasury to cover the debt.
On the other hand, if the receivable or entitlement involves successive payments, the payer shall be ordered to pay the respective amounts into the Treasury up to the limit of the amount due, unless he receives notification to the contrary from the collecting body. This provision is applicable in cases where we are dealing with deferred payment transactions in which the accrual has already occurred and the payment is stipulated in instalments, or for cases in which there is a continuing relationship contract or subsequent transaction.
From all of the foregoing, it is concluded that in this case only those credits that have accrued but whose payment period has not yet expired or in those cases where the credit entails the making of successive payments because they are operations with deferred payment or in which there is a contract of continuing relationships or operations of successive tract.