A recent Supreme Court ruling requires the Administration to accurately justify the negligent or fraudulent conduct of the administrator before assigning liability. The guarantees for corporate administrators are reinforced: liability is not automatic and must be based on solid evidence and reasoning.
The Supreme Court, in its ruling of July 17, 2025 (STS 3465/2025), has reinforced the protection of administrators against the derivation of subsidiary liability provided for in Article 43.1 of the General Tax Law (LGT).
The status of director is necessary but not sufficient. The Administration cannot derive liability solely from holding the position; it must clearly and specifically justify which conduct of the director was intentional or negligent.
1. Liability under Article 43.1.a) LGT
This refers to tax offenses committed by the company. The Supreme Court notes that this referral is punitive in nature, which implies:
Prohibition of strict liability.
Prohibition of reversing the burden of proof: it is up to the Administration to prove guilt, not up to the administrator to prove innocence.
Obligation to provide specific reasons for the alleged unlawful conduct.
Please note: If the derivation agreement merely repeats the legal obligations of the position without detailing the administrator’s actions, it will be null and void.
2. Liability under Article 43.1.b) LGT
This applies to cases of cessation of activity without orderly liquidation or declaration of bankruptcy.
The Supreme Court clarifies that strict liability does not apply here either:
It is essential to prove that the administrator failed to take key steps such as calling a meeting to dissolve the company or filing for bankruptcy.
Neglect of duties that prevents the company from meeting its tax debts is punishable.
The Administration must assess and weigh the administrator’s explanations (for example, if it was truly impossible to liquidate).
Remember: failure to act in relation to an inactive company with debts may be interpreted as gross negligence on the part of the administrator.
3. Practical consequences for administrators and companies
Greater legal certainty: there will be no automatic referrals based solely on the position held.
Strengthened defense: if the agreement does not describe the specific conduct, it can be challenged.
Review of recent cases: it is advisable to analyze open or notified proceedings to detect defects in reasoning.
Prevention: administrators must rigorously document decisions and actions (meeting minutes, attempts at dissolution or bankruptcy, communications to the Registry).
In conclusion, ruling STS 3465/2025 establishes a clear doctrine: the derivation of tax liability requires individualized proof and reasoning, both in 43.1.a) and 43.1.b) of the LGT.
Practical tips for administrators
- It is not enough to “be an administrator”: the tax authorities must prove negligent or malicious conduct in each case.
- Document decisions: meeting minutes, attempts at restructuring, communications to the Registry, etc.
- Legal defense: if the referral agreement does not justify the specific conduct, it can be challenged with a high probability of success.
- Prevention: in crisis situations, promoting dissolution or voluntary bankruptcy prevents the Tax Authorities from accusing you of neglect of duty.
For further information, please consult Legal Advice
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