The General Tax Law, in its article 24, establishes a system of subsidiary liability of the holders of organs of the administration of legal persons, even if only in fact, by the fiscal debts and contributions to the Social Security. Such responsibility has been widely attributed by the Tax Administration and Social Security without often respecting the law and citizens’ rights, often seeing their property and income illegally seized. Here are some general aspects of this legal regime.
Who can be held responsible or reversed?
Are covered by this liability, administrators, directors, managers and other persons exercising, even if only as a matter of fact, administration or management functions in legal persons and similar fiscal ones, as for example, cooperatives and associations.
The mere right management of society (the record as a Manager with the commercial registry) is not enough for the secondary liability of managers for debts to the State for contributions and taxes. If the Manager does not exercise effectively these functions of Manager, means that they don’t have the management (or direction) of society. In this case, the Manager does not control the activity of the company, i.e. does not contact with the suppliers, not decide who pays and how much you pay, don’t hire or fire workers.In short, the Manager does not control the life and the destiny of society. Evidence of de facto management usually involves the presentation of documents or witnesses, demonstrating clearly the manager controls the life of society.
What types of debts that can be reversed?
Can be rolled back tax debts and Social security contributions:
• tax debts incurred through which has been found in the period of Office of the charge or whose legal term of payment or delivery is over after this;
• Tax debts whose legal term of payment or delivery has ended the period of exercise of power.
What are the assumptions of reversal?
The reversal against the subsidiary officers (managers, administrators, etc.) can only be triggered after several previous procedures. Firstly, the tax administration must ascertain whether or not the collateral of the original debtor (company) is sufficient to pay the debt in full.
Only after the tax administration has established that the original debtor does not have sufficient assets to pay the tax debt, must verify with the competent authorities, in particular the competent Commercial Registry with a view to obtaining the identification of the subsidiaries, namely, at the date of occurrence of the events generating subsidiary liability.
What are the Reverted Rights?
Anyone responsible for the tax debt has the right to be heard, in writing, prior to the reversal, even in cases of legal presumption of responsibility.
When the reverted person exercises his right to be heard, the tax authorities are obliged to decide on the arguments or facts presented, in particular those that refer to the non-exercise of the administration or management at the time of the facts, either by renouncing it or by appointment of new management, of which they do not appear.
The Tax Administration must also carry out a careful analysis on whether the taxes that are owed have already been prescribed, in view of the law applicable to the specific case, namely the new limitation period provided for in article 48 of the General Tax Law. Only then will a decision be issued ordering the reversal of the debt against all those in charge.
What are the limits to Reversal of Tax Dividends?
In order for the debt to be reversed against the manager as a subsidiary debtor, it is necessary that the collateral of the principal debtor and the jointly responsible debtors is not sufficient and that the Fiscal Administration proves the de facto exercise of the management, of the legal presumption regarding the fault for the insufficiency of the social patrimony.
In situations where the manager performs his / her duties and during that fiscal year the tax event is formed or the payment period starts, but before the deadline expires, the manager ceases his / her functions (for example, resignation to management), the Tax Administration has to prove that the assets of the company have become insufficient to satisfy the debt due to the manager.
If it is during the exercise of the managerial post that the term for the payment of the tax is exhausted, the manager has to prove that the lack of payment of the tax debt is not his responsibility.
In summary, when managers and directors or managers of companies or other similar legal entities (associations, cooperatives, etc.) are notified by the tax authorities to exercise their right to pre-hear the reversal, they must immediately verify all circumstances and facts that may be invoked for their defense. To this end, it is recommended to consult and follow up with a lawyer to better defend their rights.