If your company receives a request from the Tax Authorities to seize the salary of an employee, remember that only a part of it can be seized and that it is calculated based on the minimum interprofessional salary (SMI), which has increased again to 1,184 euros for 14 payments.
We must remind you that the General Tax Law (LGT) establishes, always respecting the principle of proportionality, that the seizure of the assets and rights of the taxpayer will proceed in an amount sufficient to cover:
- The amount of unpaid debt.
- The interest that has accrued or will accrue until the date of payment to the Treasury.
- The surcharges for the enforcement period.
- The costs of the enforcement procedure
The same LGT indicates as attachable assets the wages, salaries and pensions, providing that assets or rights declared unattachable by law are not attached. In this sense, the General Collection Regulation establishes that:
“The attachment of wages, salaries and pensions shall be carried out taking into account the provisions of the Civil Procedure Act (LEC).
The attachment order shall be presented to the payer. The latter will be obliged to withhold the appropriate amounts in each case on the successive amounts paid as salary, wages or pension and to pay into the Treasury the amount withheld up to the limit of the amount owed”.
What are these limits of attachability established by the Civil Procedure Law (LEC)?
The LEC generally declares attachable the “salaries, wages, wages, wages, remunerations or pensions” that are higher than the minimum interprofessional salary (SMI), and this according to the scale established by the regulation itself, which is based on a series of brackets according to the amount by which the emoluments exceed the SMI.
Please note that, with effect from January 1, 2025, the SMI has been increased to 1,184 euros per 14 payments. In 2023 it was 1,134 euros.
However, despite the apparent clarity of this provision, in practice some doubts arise as to whether or not certain concepts that make up the emoluments should be computed for the purposes of applying the withholding scale established in the regulation or, on the contrary, whether they would be exempt, being unseizable. This is precisely what happens with the salary allowances, since they are usually integrated as another concept in the payroll of the employees, as part of their remuneration, which raises the corresponding doubt or question when the company practices the salary withholding ordered by the Court or Tribunal.
The LEC (article 607) indicates that:
- The salary, wages, pension, remuneration or its equivalent, which does not exceed the amount indicated for the minimum interprofessional salary (SMI), cannot be withheld.
- The salaries, wages, wages, wages, remunerations or pensions that are higher than the minimum interprofessional wage will be seized according to this scale:
- For the first additional amount, up to the amount equal to twice the minimum interprofessional salary, 30 percent.
- For the additional amount up to the amount equivalent to a third interprofessional minimum wage, 50 percent.
- For the additional amount up to the amount equivalent to a fourth minimum interprofessional salary, 60%.
- For the additional amount up to the amount equivalent to a fifth minimum interprofessional salary, 75 percent.
- For any amount exceeding the above amount, 90 percent.
What happens with the per diems, are they attachable without limit?
The LEC establishes what will be the unattachable amounts, but in any case, of the wages, salaries and pensions, as well as the limits of its attachability, although, it does not establish what is the concept of salary and what amounts integrate it.
Now, to know what is to be considered as salary, the legal answer is obtained from the labor legislation, specifically the Workers’ Statute states that:
1. The totality of the economic payments of the workers, in cash or in kind, for the professional rendering of labor services as an employee, whether they remunerate the actual work, whatever the form of remuneration, or the rest periods computable as work, shall be considered as salary.
In no case may the salary in kind exceed thirty percent of the worker’s salary payments, nor give rise to the reduction of the full amount in cash of the minimum interprofessional salary.
2. The amounts received by the worker as indemnities or allowances for expenses incurred because of his work activity, the benefits and indemnities of the Social Security and the indemnities corresponding to transfers, suspensions or dismissals shall not be considered as salary.
Based on the foregoing, it is concluded that the amounts paid as per diems paid in the payroll would not be included within the concept of salary for the purposes of the application of the seizure limits of the LEC, and, therefore, would be sizable without limits, in accordance with the general tax provisions on seizure of goods and rights.
Therefore, for these purposes:
- If a concept is not considered a salary, do not apply the scale provided in general (said scale is only applicable if salary concepts are seized).
- Even if the per diems appear in the payroll, they must be separated from the rest of the salary when calculating the garnishment.
For more information, please contact Labor consulting
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