The Plenary Session of Chamber IV of the Supreme Court has issued a very interesting ruling that has, however, left, in ellipsis, the unification of doctrine on a matter as controversial as that of the calculation of the capital cost to be entered in a case of surcharge of benefits derived from Absolute Permanent Disability when the worker dies before said amount is determined.
The sentence, which has a private vote, of which the Hon. Mr. Magistrate Mr. Ángel Blasco Pellicer, concludes that, if the capital is determined before death, it must be established and the surplus is not returned; but if it is configured later, it should only extend to the date of death, already known.
The problem posed by the appeal filed by Social Security consisted of deciding whether the death of the worker constitutes a time limit for the calculation of the capital cost of the benefit or income to be paid by the responsible party.
The lower court ruling of the Social Court no. 9 of Seville considered that the actuarial rules applicable to setting the amount of cost capital must be referenced to the circumstances at the time of the date of effect of the surcharge, regardless of whether the pensioner dies a few months after requesting his tax.position and prior to the establishment of the capital cost by the TGSS.
The Social Chamber of the Superior Court of Justice of Andalusia, in a resolution of February 18, 2021, upheld the appeal and understood that the final date that dmust be taken into account in order to quantify the capitalization of the surcharge, it must be that of the death already known to the worker and not the result of the ordinary application of actuarial standards.
The ruling reasons that in the case prosecuted the obligation to pay the surcharge can only extend to the date of death of the worker because, although it is true that the return of the capital not consumed due to the death of the worker is not possible (STS of March 24 of 1986), this doctrine is applicable when the cost capital is constituted during the life of the worker, but not when at the time of its constitution the worker had already died. The reason given by the ruling is that at the time the surcharge was imposed, the duration of the IPA provision was already known, so that, if this was not done, unjust enrichment would be generated.
Faced with such a decision, the INSS formulated an appeal for the unification of doctrine. In his defense, he argued that the capitalization should be carried out in accordance with the actuarial calculations that apply on the effective date of the surcharge, regardless of the time of death of the beneficiary of the benefit. The Public Prosecutor’s Office reports in favor of upholding the appeal.
Finally, our High Court considers that the specific case prosecuted does not meet the requirement of contradiction and must therefore be inadmissible.
It is true, however, that for the dissenting judges, the reason for the corporate responsibility that requires capitalization would be irrelevant and, consequently, disagree with the different legal effect that the ruling allows for the same problem.
New resources will have to be found to clear up the mystery in each of the cases raised in the deliberation of the Plenary Session of Chamber IV.
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