Irregularities in enforced recovery

As discussed elsewhere in this Manual (see Chapter 2), the tax authority is vested with the broadest powers of enforcement on the taxpayers assets when they, for whatever reason, do not properly serve the fulfilment of their tax obligations. So far, there is no objection.

Nevertheless, the possible collision between the right of the Administration and the collective interests of taxpayers requires strict control of legality, so that the execution of the debtor's assets is carried out in strict application of tax regulations, and with the necessary precautions that each case requires. Here we can object to the sometimes irregular operation of the Administration, although sometimes such failures are a direct consequence of the existing legal void.

It is relatively frequent the cases in which the Administration arbitrary and poorly diligently incurs irregularities in enforcement proceedings, with obvious prejudice to taxpayers.
Here are some examples:

a) It is not surprising that the taxpayer, having appealed a settlement in a timely manner, and having presented appropriate guarantees to ensure the suspension of the execution of the administrative act, receives an enforced recovery notice (see section 2.3) in which the Tax office communicates the opening of the enforcement proceedings, claiming the income debt, interest on arrears and, last but not least, a surcharge of 20 percent urgency (see section 2.4).

Reason for irregularity: the Regional Economic Administrative Court does not notify management bodies’ suspension of the execution of the administrative act. Consequences: it forces the taxpayer to appeal, failing which his action and decay proceed with the seizure of their assets.

b) The excessive tax collection effort of the Administration sometimes leads to practice embargoes indiscriminately, without regard to, for example, that the current account balances seized may be jointly owned, or that account receives solely and exclusively wages of labour which, as we know, are partially untouchable. In other cases, goods that don’t belong to the debtor, the aggrieved must proceed to a third party with a better right to recover their assets seized

Reason for irregularity: lack of diligence in the functioning of the administration. Effects: undoubted damage to third parties or to the taxpayer.

c) The taxpayer appeals the settlement via the economic-administrative (administrative courts), presenting the corresponding guarantee in order to obtain the suspension of the administrative act. The Court dismisses the action in question, ending the administrative authority. The taxpayer appeals to the High Court of Justice, in which it must be done within a two month deadline. The problem is that the two-month period exceeds the time the Administration gives to the taxpayer to pay the tax debt.
Since the Administration doesn’t know whether the taxpayer is going to appeal against the decision of the Administrative Economic Court, proceeding without executing the guarantee provided to achieve the suspension. This is where it shows the malfunction of the Administration, without notice, runs the guarantee provided by the taxpayer.

Reason for irregularity: legal void, which results in a lack of coordination between courts and administration, without spiritually appreciating collaboration in the latter. Consequences: improper execution of the administrative act.