Different types of tax payment liability
For the payment of different taxes, the law establishes a list of persons who can be liable, and which basically consists in those persons who have the fundamental liability or so called principal debtors, those persons who have a joint liability along with the debtor and finally those persons who have a subsidiary liability.
■ Principal Debtors: These are those persons who have a fundamental liability as the so called principal debtors, and as such they are those persons who in first place are obliged to make payment of the tax due. Only when they do not make payment, the Tax Office can lodge a claim against any other possible debtors. The principal debtors are as follows:
■ The Tax Payer: These are the persons who have the obligation to make payment of a tax and to fulfil those formal obligations such as for example, submitting a tax return when the act that produces the obligation of paying tax has taken place ( i. e. The sale of a property for example). The law also makes a reference to contributors, who have the same consideration as the tax payer as principal debtors when this condition is established by specific legislation. An example of this is when one purchases a property from a nonresident in Spain, and the purchaser is a substitute of the vendor with regard to any unpaid rates bills. This is an example of the importance of making sure that everything is paid prior to the sale of the property.
■ Joint and Subsidiary Liability: Along with the principal debtors, the law can also establish a series of persons who have a joint or subsidiary liability. This is a measure to ensure the payment of the tax to the Tax Office in the case that the principal debtor does not make payment.
Primarily, the general principle is that of subsidiary liability and as such this is established as a legal presumption unless there is an express disposition to the contrary. In any case, the nonpayment by the principal debtor is always the fundamental requirement for the Tax Office to be able to claim payment of tax from any other persons with a joint or subsidiary liability. In both of the cases of either joint or subsidiary liability, an express administrative decision must exist by which the persons liable are given a right of audience, by which their liability is declared and by which the extent of this liability is reflected. There are some exceptions established by law such as in the case in which the 3% retention is not made upon the sale of a property by a Non Resident and as such the person liable is the purchaser. Again, it is important to make sure that this retention is made upon the sale of the property to make sure that the purchasers do not find themselves liable for this debt. Normally, this tax is articulated as a retention from the purchase price, and is paid straight to the Tax Office as if not, and as advised above, it is the purchaser who will find himself obliged to make payment.
These obligations are not normally transmitted to one’s inheritors unless the Tax Office has notified their decision to deviate the liability prior to the death of the principal debtor. As a general principle, the debt is limited to the amount owed during the period of voluntary payment and the liability does not include the sanctions or fines that could arise as a consequence of nonpayment although there are exceptions to this general rule. At the same time, in the case that there is more than one person with a joint or subsidiary liability, the Tax Office may claim the full amount from either of them without prejudice of the fact that the person who has paid the debt may then take action against the other persons with joint or subsidiary liability for the payment of their respective quotas. These types of claims to recover the proportional amount of tax paid by one person on behalf of others are of a civil nature and are not governed by the respective fiscal dispositions. The Tax Office is not interested in the agreements between the persons liable with regard to the payment of unpaid tax.