Is the implementation of the administrative act suspended when it is appealed?

Clarify your doubts by consulting your particular case

We saw in Section 2.1 of this Manual that acts issued by the Administration are presumed certain executives without judicial assistance.

But this does not mean that the acts are final, since the taxpayer has the possibility to bring forward an action, first through administrative proceedings and then to the courts.

In anticipation that the decisions and judgments handed down on appeal, can estimate the total or part of the grounds alleged by the taxpayer, the law provides the possibility that the execution of the administrative act is suspended until the final resolution of the matter.

However, the suspension requires the taxpayer, when filing the corresponding resource, supply adequate guarantees that in the event that the final judgment is favourable to the administration, it can enforce the outstanding tax debt.

To this end, the following guarantees are the only ones valid:

a) Supportive guarantor given by credit institution.

b) Cash deposit or government securities in the General Deposit Box.

c) Joint and several guarantee provided by two taxpayers of the town of recognized solvency, only for deposit debits less than 100,000 pesetas.
The guarantee should cover the amount of the contested tax debt, plus interest on late payments originating from the suspension. In the event that a claim is made in economic administrative route, it must also cover 5 percent of the tax debt in the case it’s the Economic Court
Administrative assesses recklessness or bad faith. In the executive procedure there are certain specialties that are discussed in paragraph 2.9.

Partial Reform Law of the General Tax Law introduces significant changes in the field, among which it is worth noting the following:

a) The suspension of the sanctions imposed by the Administration should be automatic, without collateral, when their performance substantially affects the maintenance of productive capacity or services, and employment levels of economic activity. For this purpose, it is understood that it substantially affects when the penalty exceeds 15 percent of equity or equity the taxpayer.

b) If the taxpayer cannot provide the necessary guarantees for the suspension, it may be decreed, provided that the execution could cause impossible or difficult harm that can be repaired. In these cases it may or will not seek the contribution of other guarantees (e.g. mortgage, pledge, personal bond, etc...).

Recently it approved a Royal Decree that establishes the possibility that the guarantee provided in an administrative appeal can be extended to the economic and administrative authority. Thereby avoiding the presentation of a new guarantee, removing the appeal presented.

The taxpayer may also choose to pay the tax debt and then appeal the administrative act later. In this case, it is meaningless to request the suspension of the execution of the administrative act, not being therefore necessary to provide some assurance. If the appeal is favourable to the taxpayer, the Administration must return the amount received plus statutory interest.

Finally, with regard to administrative resources, it is noted that the interposition of so-called special review (see section 4.6) does not suspend, in any case, the execution of the contested act.

When the matter at hand reaches the Contentious Jurisdiction (see section 4.10), in theory the suspension could be agreed without bail, provided they could prove that the execution of the administrative act involves a difficult or impossible harm to repair for the taxpayer (e.g. it is affecting production or job generation capacity of the company). Nevertheless, in practice, the courts, except in very exceptional cases do not agree to suspend the execution of the administrative act if the taxpayer does not provide or extend the corresponding guarantee.