To understand the topic of this month, it is necessary to understand what is defined by “seizure”, this being the retention and immobilization of one or more assets or assets of a person that is carried out by a judicial or administrative order, which has as its endd guarantee the debit of a person and prevent it from selling, pawn, transfer or give them away.
Likewise, it is known as a means of forced execution by means of which the creditor puts in the hands of the judicial authority the assets of the debtor, so that the debt is covered with said assets. It can be carried out in two ways:
PREVENTIVE ATTACHMENT: Issued as a precautionary measure, and that would be carried out at the beginning of the judicial process, in order to guarantee the fulfillment of the main luck demanded by an obligation breached by the debtor.
EXECUTIVE SEIZURE: It consists of the retention of assets by the judicial authority, for subsequent sale.
However, in tax law, the seizure of assets isa phase of the collection procedure that is carried out when the taxpayer does not pay the debt within the period of time indicated in the notification of the final tax credit.
The Tax Administration Service, in order to makea firm tax credit, as well as the amount of its accessories (update, fines and surcharges), has the power to require the debtor to pay said credit and, in the event that the debtor has not proven that he complied with the payment, may proceedto the seizure of bank deposits.
In accordance with the above, the tax authority may carry out the seizure under the following guidelines, which for practical purposes are summarized in:
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- The tax credit must be firm, that is, the decision issued tothe tax authority must be res judicata, and that it does not admit means of challenge, since it is immovable as to its meaning.
- At the time of requiring the payment of the final tax credit, the tax debtor must prove that he complied with the payment ordered by the authority (tax or judicial, as the case may be), if not, the administrative authority will immediately proceed tothe emba rgo of the bank deposits, with the restriction that it must not exceed the total amount of the tax credit and its accessories.
- In the above cases, the tax authority may make the declaration of attachment in which it will detail the seized assetsand that may be made known to the debtor through the tax mailbox, stands or edicts.
- It should be specified that, in the event that the seizure procedure is carried out by personal notification, the designated executor will be constituted in the fiscal domicilio or in the place where the assets to be seized are located, and must prove his personality with the person who attends him in the diligence, of order for payment and seizure of goods. On this diligence, a detailed record of the facts will be drawn up, of which a signed copy will be delivered to the person with whom the seizure procedure was understood, and in case it is notthe owner of the goods, the above will be made known to him m ediante tax mailbox.
- Once this is done, the administrative enforcement procedure will continue.
One of the substantial restrictions faced by the tax authority is that it must not seize the deposits it receives in the bank account held by the debtor taxpayer, for wages and salaries, in which it would receivebank deposits to be seized.
It is made clear that, in tax matters, in addition to the seizure of deposits received in the bank account, the entire bank account, as well as all its movements, can also be seized by freezing or rather immobilizing the debtor’s bank account.
Since the substantial difference between these two figures is that in the first, the deposits that the debtor would receive would be subject to seizure, and in the freezing of bank accounts, the tax authority with the support of the National Banking and Securities Commission would not allow the realization of bank movements, call them withdrawals and deposits, which would mean that the debtor would not be able to freely dispose of the money deposited in that bank account.
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