We analyzed the TEAC resolution of June 2, 2016
A common problem that often arises in relation to the responsibility of company directors towards the Tax Authorities is what happens in those cases where the expiration of their appointment has occurred, or their resignation from the position, as causes provided for in the Law that entail the cessation of the directors of a company.
Well, the expiry of the appointment of the administrator, or his resignation from the position, does not release the administrator from the obligations he acquired with the Tax Authorities as administrator of the company.
This was recently determined by the Central Economic Administrative Court (TEAC) in a resolution of June 2, 2016 (in a case in which the AEAT denied the census deregistration requested by the administrator of a company, due to expiration and subsequent resignation from the position, in order to get rid of the obligations to the Treasury inherent to his position), which establishes that, although the position of administrator has expired without being renewed, it must be understood that there is a tacit extension of the mandate.
The administrator will be released from liability to the Tax Authorities once one of these situations occurs:
• is appointed new administrator at a general meeting.
• The company is dissolved, following a meeting being called.
If the above is not possible, you must request judicial dissolution, as it is impossible to appoint another administrator to replace you and make the company operational.
Therefore, several requirements must be met for an administrator to cease having the aforementioned responsibility:
• The expiration of the term of office of the director or their resignation from this position.
• The holding of a general meeting in which a new director is appointed.
The TEAC recalls that this criterion is supported by the jurisprudence of the Supreme Court and by the resolutions of the Directorate General of Registries and Notaries, such as that of January 15, 2002, which maintains that the expiry in the appointment of the administrator of a commercial company does not occur automatically by the passage of time, but that, until other administrators are appointed, they retain some powers such as the power to convene the general meeting to appoint those new administrators.
The aforementioned resolution adds that the appointment of another administrator is necessary for:
• To make the company's operation and management operational.
• To represent the company before third parties.
• To assume the corresponding legal responsibility.
In short, this administrative criterion must be kept in mind by all administrators who think that the expiration of their appointment, or their express resignation from the position, may allow them to forget about their responsibility for the debts of the company.
You can contact this professional office for any questions or clarifications you may have.
Fiscal Area
Àmbit Assesor
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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