The challenge through contentious-administrative proceedings, prior to the declaration of bankruptcy, of a derivation of liability that has not yet been paid allows the exoneration of the unsatisfied liabilities of the bankrupt, as recognized by the Provincial Court of Pontevedra, in a ruling of October 14, 2024.
The rapporteur, Judge Menéndez Estébanez, reasons that in civil proceedings the distinction between final and final resolutions is clearly differentiated, the latter characteristic applying to resolutions against which there is no longer any appeal (article 207 of the Civil Procedure Law).
For this reason, it considers that the reference to firm administrative resolutions of article 487 of the Consolidated Text of the Bankruptcy Law (TRLC), admits the interpretation of the Third Chamber of the Supreme Court (number, 129/2021), which expressly establishes the difference between final and firm administrative resolution, understanding that finality cannot be applied if the resolution is pending an administrative contentious process.
“The debtor had not actually paid the amount owed before submitting the application for exoneration, but we are not faced with an exception that prevents the exoneration of the unsatisfied liability since all the requirements required for its assessment are not met, specifically, that the administrative resolution that agrees on the derivation of liability is final, as it is being appealed in the jurisdictional venue,” says the rapporteur, who adds that “the current admission for processing allows us to rule out that “we are faced with a case of artificial presentation, because it is untimely”.
Furthermore, the magistrate reasons that “the order declaring consecutive bankruptcy is dated prior to the declaration of liability and, in it, the suspension of the powers of administration and disposal over the debtor’s assets is agreed upon, with the effects provided for in the articles 106 et seq. of the TRLC.
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