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Thesis

Spanish

ID: <

10670/1.9rvhyi

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The protection of tax claims in insolvency proceedings: relevance or interference

Abstract

The doctoral thesis entitled ‘Protection of triburary claims: relevance or interference’ is intended to study the conduct of the tax claim when insolvency proceedings are declared against the person liable for payment. As a multipley study, the work is based on two legal disciplines, insolvency and taxation. Special attention is paid to tax matters, while bearing in mind that there is a need for a contextualisation in the place of insolvency. This is because there are a number of mandatory requirements in insolvency proceedings which mediate tax rules, in particular tax procedures. General Tax Law 58/2003 and Insolvency Law 22/2003 will be the legal texts that have been analysed mainly, but without neglecting the important reforms that took place in both laws, with particular reference to the reform implemented in the Insolvency Law by Law 38/2011 of 10 October 2003. This law represented, among other reforms, a protection of the tax credit, leading to a certain backlash in the principle of par conditio creditorum. The reform of Law 38/2011, of 10 October, adopted the measures suggested by the governing bodies of the AEAT for the protection of public credit, which were deemed necessary to balance public accounts. However, the legal controversy did not stop with the new law. The reform was tainted by some inaccuracies, contradictions and errors of legislative technique which led to new legal discrepancies in the interpretation of the rule. It has been the Supreme Court (TS) that has laid down interpretative guidelines, not only through the special chamber for the resolution of conflicts of jurisdiction (CCJ), but also through the civil chamber and the administrative chamber. It is precisely the study of all this interpretative controversy which, among other reasons, justifies the performance of this work. Given the relative youth of the current LC at least when compared to the longevity of the previous regulation, the problems of interpretation have been and will continue to be studied by scientific doctrine. The present LC, whose guiding principle is the par conditio creditorum, has given rise to ink rivers in relation to the possible interpretation of its articles. There have been unequivocal positions, most often, and others that are not so homogeneous, in which there are truly conflicting doctrinal positions. This situation of interpretation is also reflected in the rulings of commercial courts and provincial courts. The work of the Commercial Judge is inclusive and interpretative of the LC. This interpretative task seeks to resolve all those gaps or contradictions that have been revealed by the insolvency practice. There have been shortcomings and inaccuracies in the FTA and, above all, a lack of forecasting (a very difficult task, on the other hand, as we have anticipated) in the face of an economic crisis. That view is divided into six chapters, the content of which is, in essence, as follows: Chapter I contains a first introductory part, which briefly analyses the historical evolution of both insolvency proceedings and tax claims. The second part of the chapter analyses the legislation in force with a view to having an overview of the insolvency proceedings and the tax claim. The interrelationship between LC and LGT is crucial for the due determination of the tax claim and its privileges in the bankruptcy procedure. The third and final part of the chapter is devoted to comparative law, with an analysis of the legislation and case-law affecting the tax claim in the insolvency proceedings in France and Italy (comparative legal method).

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