One of the questions raised by the approach to the different assumptions of tax liability included in articles 42 and 43 of the General Tax Law is their nature and, specifically, whether they should be classified as sanctions and, consequently, the rules of the sanctioning regime and its guarantees should be applied to them.

The generally accepted parameter - within the scope of the European Convention on Human Rights - to determine the penal or sanctioning nature of a legal consequence required by the public authorities in the event of, as a factual prerequisite, a certain conduct or legal act, is determined by the criteria of the doctrine of the European Court of Human Rights in its Judgment 5100/71 ENGEL AND OTHERS CASE (ECHR-16), issued on June 8, 1976, on the application of the guarantees of the European Convention (Articles 5, 6, 10 and 14) to the military disciplinary regime.

In this paradigmatic matter, the elements that the Court analyzes and that can serve to determine this nature are: the qualification made by the national legislator, which, although not decisive, is a strong indication of its nature; the legal asset protected, such that the protection of general interests is linked to a greater extent to the sanctioning nature of a certain liability, and, finally, the severity of the sanction, particularly if it involves deprivation of liberty or consists of significant fines or other serious consequences, would determine its criminal nature.

This issue, in the light of the Engel criteria, was addressed on the basis of Article 50 of the Charter of Fundamental Rights of the EU, by the Grand Chamber of the CJEU in the C case.‑524/15 (MENCI case), in its judgment issued on 20 March 2018, examining a preliminary question on penalties for tax infringements relating to VAT , its possible criminal nature and its compatibility from the point of view of the limits of the principle of ne bis in idem .

In the Menci case, specifically when addressing the institute of ne bis in idem in the context of tax offences, obviously respecting the criteria of the ECHR established in the Engel case and in light of these, it considers that the offences called by the legislator "administrative" may have criminal status if they are sufficiently serious in terms of severity and deterrent or repressive purpose.

In paragraph 31 of the MENCI judgment, the CJEU addresses the second of the Engel criteria and points out that in order to determine whether a sanction is criminal in nature, it is necessary to analyse whether its main objective is to punish unlawful conduct and prevent future infringements. And this section 31 concludes with a statement that we wish to highlight, which is that if the measure is limited to repairing the damage caused by the conduct, it is not considered to be of a criminal nature.

Well, the figure of article 42.2 a) LGT is limited to repairing the damage caused, since its scope is limited to the harm caused to the creditor. It is this defining note that gives us its legal nature, as an indemnifying remedy against fraud by creditors, similar to what would be a Pauliana action or an action for nullity due to simulation, all of them also available to the public creditor.

This is why the jurisprudence, already contentious, has told us that the power contained in article 42.2 a) LGT allows the protection of public credit without the need to resort to actions of nullity or rescission, STS of June 20, 2014, Contentious, cassation 2866/2012, or the STS of December 14, 2017, Contentious, cassation 1847/2016.

And that is why civil jurisprudence has told us that the responsibilities for concealment, typical of self-protection, and the nullity due to simulation due to illicit cause, respond to a common substrate, the fraud of creditors, STS of April 24, 2013, Civil section 1, cassation 2108/2010, FJ 8.

This is how we should understand the doctrine of the Menci case, the CJEU considered that the repressive or deterrent nature is decisive in qualifying a measure as a criminal sanction. In the case of liability under article 42.2.a) LGT , although liability has a deterrent effect, its purpose is to guarantee the effectiveness of the administrative collection action by guaranteeing the integrity of the debtor's assets, and being of a restorative nature, applying the doctrine expressed in the aforementioned section 31 of said ruling, the sanctioning nature would be excluded.

An eloquent example can be found in the CJEU ruling of 13 October 2022, Case C-1/21. The analysis was of a Bulgarian response to the depletion of the assets of companies, which was carried out disloyally by their administrator, for his benefit and that of his trusted group, which ultimately caused insolvency and non-payment of taxes.

The Bulgarian rule determined the liability of the administrator, but limited it to the amount of the reduction in the company's assets, and that is why the ECJ, in its section 44, affirms the absence of a criminal nature of the measure, underlining in its section 53 how the scope of the mechanism has been limited to the amount of the reduction in assets, and affirming in its section 82 how this supports its proportionality.

The Contentious Chamber of the Supreme Court has never hesitated to deny any hint of a punitive nature in the figure that concerns us now. Thus, the STS of June 27, 2017, cassation 433/2016, went so far as to state in its FJ 9 that "we are not dealing with a sanction, however much the derivation of responsibility may seem that way to the appellant"; and for its part, the STS of June 3, 2019, cassation 84/2018, also for this figure, is forceful in its FJ 2 point 2 pointing out the opportunity to address the claim of having this liability as a sanctioning party.

And it has been the STS of April 28, 2023, cassation 546/2021, which has already worked hard to settle these debates, establishing as jurisprudential doctrine that this liability is not of a sanctioning nature, but not without first stating in its FJ 6 how neither the intentional element inherent in the liability of article 42.2 a) LGT , nor the possibility of including sanctions in the scope, will in no way transmit to this liability any kind of sanctioning nature.

And what happens is that this responsibility has a "peculiar nature", since the reference of these responsible parties is not the main debtors, but the assets removed from the patrimonial guarantee that could have been made effective through the action of seizure or alienation by the Public Treasury described in article 42.2 a) LGT .

And this patrimoniality of article 42.2 a) LGT , we could find it in such pronouncements, all of section 2 of the contentious matter, such as the STS of September 27, 2012, cassation 3103/2009, FJ 7; STS of June 3, 2019, cassation 84/2018, FJ 2, point 1; STS of July 10, 2019, cassation 4540/2017; STS of January 27, 2020, cassation 172/2017; STS of May 12, 2021, cassation 62/2020; STS of January 25, 2022, cassation 2297/2018; STS of January 25, 2022, cassation 8315/2019; STS of February 17, 2022, cassation 6944/2019; STS of February 15, 2023, cassation 4596/2021; STS of April 21, 2023, cassation 4843/2021.

And it is this patrimoniality of the remedy located in article 42.2 a) LGT that allows us to understand its nature as an indemnifying response to the fraud of creditors, and what allows us to affirm, ultimately, that in it, there is not even a hint of a sanctioning nature, as there is not, nor can there be, in the Pauliana action or in the nullity action due to simulation, no matter how much some insist on the contrary.