The Fourth Section of the Contentious-Administrative Chamber of the Supreme Court has handed down a sentence in which it establishes that the Treasury cannot declare a minor without income jointly and severally liable for the debts of their parents in the modality of joint taxation of the Tax on Income of Physical Persons (IRPF) of the family unit, confirming a resolution of the Superior Court of Justice of Navarra in this regard.
The Chamber considers that the Tax Administration provides discriminatory treatment to these minor children with respect to the adult children dependent on the parents because these are not members of the family unit and are not subject to joint and several liability.
The case examined affects a child who, when he was ten years old, in 2010, was included as a member of the family unit for the purposes of joint taxation for the Personal Income Tax corresponding to that period. The file shows that he did not receive any income that year, but on April 27, 2021, the Navarra Provincial Treasury issued an attachment order against him for the principal plus the interest owed for the 2010 personal income tax liquidation of the family unit. .
The Tax Administration considered him a joint and several debtor, in accordance with article 73.5 of the Navarre foral law on personal income tax, which provides that natural persons integrated into a family unit who opted for this form of taxation were “jointly and severally subject to the tax as taxpayers, without prejudice to the right to apportion the tax debt among themselves, according to the subject part that corresponds to each one of them”.
The affected person appealed this decision before the Contentious-Administrative Court No. 2 of Pamplona, ??which confirmed it, and later before the Superior Court of Justice of Navarra, which did agree with him, annulling the seizure procedure. In its ruling, this court concluded that the administrative resolution and the court ruling were incorrect and that the case raised had to be resolved in light of the jurisprudence of the Constitutional Court, which only admits the joint and several liability of the members of the family unit if between them there has been transmission of rents. The Foral Community appealed in cassation before the Supreme Court, which has now dismissed its appeal and has confirmed the ruling of the appealed sentence.
The Chamber considers that the interpretation of the Navarra foral law of personal income tax that makes the judgment appealed is in line with the principle of comprehensive protection of children, “since it places them in defense of joint and several liability when they have not obtained any income and, therefore, For that same reason, their assets and rights -if they have them- have not influenced the production of the taxable event”.
The sentence, presented by magistrate Luis María Díez-Picazo, affirms that it is a “reasonable interpretation” because it is in accordance with what is required by the Constitutional Court, which established that this joint and several liability can only be demanded when certain requirements are met. “It cannot be required of someone who, in the logic of a personal and direct tax, would not be required to make any payment, and whose non-existent income is by definition unnecessary to determine the income of the different subjects”, since this would contravene the established constitutional limits, it collects. sentence.
To this, the Chamber adds that the literal interpretation of the Navarran personal income tax law “leads to discriminatory treatment of the minor child integrated into a family unit for the purposes of joint taxation with respect to those of legal age dependent on the parents, whose situation is not socially different from the situation of minor children and, nevertheless, they are not subject to joint and several liability simply because the law provides that they are not part of the family unit”.
“But there is more; even if the comparison is not made with children of legal age who are still dependent on their parents, the norm that establishes this joint and several responsibility for a tax debt in whose production they have not participated implies that minor children integrated into a family unit receive different tax treatment from the rest of the minors, a difference that cannot be justified based on any personal or economic circumstance worthy of attention,” the sentence added.
The magistrates point out that, due to his age (10 years old at the time), the plaintiff could not assent or disagree with his parents’ decision to opt for joint taxation of the family unit, which, although it was more beneficial for them, could be detrimental for the minor child. In addition, it asserts that the tax legislation does not contemplate any means to solve this possible conflict of interest and that this contrasts with what happens in the purely civil sphere, where it is possible to appoint a defender when in any matter the parents have an interest opposed to the one of their unemancipated children.
For the court, this consideration cannot be ignored when interpreting the legal norms that establish the joint and several responsibility of the minor child integrated into a family unit, “since he has not even had a voice to create the determining situation of solidarity, nor are adequate means legally provided to protect him from the consequences of that”.
The Chamber explains that in this case there has not been any illegal or fraudulent conduct, apart from the non-payment of the tax debt, and that it is a relevant fact because on some occasion it has had to face the problem of the joint responsibility of the minor in the concealment of estate. Remember that in these cases the answer has always been negative, because it is understood that joint and several liability comes from fraudulent activities, behaviors and intentions for which a minor is always inimputable by operation of law.
“And if this is valid in terms of ordinary legality in cases in which there has been illegal or fraudulent conduct, it must be affirmed with all the more reason when -as in the present case- there has not been one,” the court underlined.
Finally, the Chamber specifies that, in the case of a minor child who has not obtained any income, “it would be possible to understand that what does not fit is purely and simply the joint taxation of the family unit”. He points out that the state personal income tax law establishes that a condition for joint taxation is that all members obtain some income; “and this because, if they do not receive any, they are not taxpayers.” “Remember that, in accordance with article 36.2 of the General Tax Law, the taxpayer who performs the taxable event is a taxpayer,” he says.
