The Personal Income Tax Law (Article 82) says that, among other forms of family unit, it will be considered such “the one made up of the spouses who are not legally separated and, if any, the minor children, with the exception of those who, with the consent of parents, live independently of them. In the Case of Accumulated Taxation, the Personal Income Tax Law (Article 84) Also Says That “All Members of the UNIT WILL GIVE JOINTLY AND JOINTLY TO THE TAX, Without Prejudice To The Right To Prorate Among Each Other The Tax Debt, According To The Part Of The Income subject that corresponds to each one of them.”
What role does it play in the joint taxation of minors? The one of stone guests given their lack of capacity to act, of autonomy of an absent will due to the absolute dependence that they maintain with their parents, who are the ones who show their thumbs up or down after their debate on the convenience of declare personal income tax individually or in its modality of joint declaration? What can I say? In my opinion, the fate of the kids is not clear at all. They will check it below.
In 2011, the boy Marito was 9 years old and lived with his parents in Pamplona. It was the time of the IRPF harvest sown the previous year (2010). While Marito was entertained for the umpteenth time that afternoon with the same video game, his father and his mother, without consulting the tadpole, agreed to pay jointly. Needless to say, Marito was packaged into the family unit. And that the child had not earned any income in his favor.
As the quota declared by the family unit did not satisfy the aspirations of the foral treasury, it practices an additional liquidation that did not deserve the attention of the indolent Navarrese unit. Faced with such rudeness, the forales began to shoot seizure proceedings against all the members of the fiscal unit, from which even the boy Marito was not saved, who, at his young age, saw how the collectors of Pamplona (diligence of 27 April 2021) seized his meager money. The forales based their actions on article 73 of their Personal Income Tax Law, the content of which is similar to that of the aforementioned article 84 of the State Law.
Marito’s legal representatives complained to the Contentious Court No. 2 of Pamplona. The result? A new slap to Marito (judgment of December 16, 2021), who had no choice but to go to the school medicine cabinet to ask for adhesive tape and mercromina. The procedural phase of the appeal turned out better luck (judgment of May 27, 2022, of the TSJ of Navarra): “It is not possible to have a minor as jointly responsible for personal income tax, even if they are integrated into a family unit, if they have not income obtained. According to the TSJ of Navarra, the declaration of joint and several liability of a minor is only admissible in cases of transmission of income between members of the family unit. Otherwise, the subsequent internal apportionment of the tax debt will not make any sense, according to the part of the subject income that corresponds to each one of them (article 84 of the Personal Income Tax Law). This legal paragraph would not be understood without prior obtaining of income by the minor.
Furthermore, the declaration of responsibility of minors means their discrimination against their older siblings. Since the latter cannot be part of the family unit, they evade any seizure of their assets even though they share with the minors the trait of economic dependency of their parents. That is to say, with equal economic circumstances, some children have a worse legal status than others, which violates the right to equality before the law (article 14 EC). And not only that. The tax law also negatively discriminates against some minors (those who reside in their parents’ house and depend on them) in relation to other minors (those who live independently of their parents). The first are members of the family unit. The seconds don’t. The former suffer the risks of joint and several liability. The seconds don’t.
Impassive with the gesture, the Foral Community of Navarra filed an appeal before the Administrative Litigation Chamber (Fourth Section) of the Supreme Court (TS). In the order for admission of the appeal, the Supreme Court stated: “The question to which, in principle, it is understood that there is an objective appeal interest for the formation of jurisprudence [es] determine the scope of the joint and several liability of the members of the family unit in the joint taxation of personal income tax, whether or not the statement of joint and several liability of minors without income is contrary to Article 14 CE.”
The matter has just been resolved by the brilliant judgment of July 13, 2023 (presentation by Luis María Díez-Picazo). The TS underlines the lousy technique used by the legislator on the issue of joint liability of minors, which is fertile ground for the abuses of tax collectors. The child Marito, in addition to not having earned any income, “…as a minor could not agree or disagree with the decision [tomada por sus padres] to benefit from the modality of joint taxation of the family unit.” In addition, the TS highlights the following legal discrimination according to the origin of the debt: “…if the debt was required [al menor] as an heir, he could always have avoided it by accepting the inheritance for the benefit of inventory; but an escape route like that does not exist in the present case, so being jointly and severally responsible for the debt of the family unit is equivalent to forcing [al menor] to start life with a heavy load…”.
It is obvious, regardless of what the law says, that the decision to benefit from joint taxation is not available to minors, who lack the capacity to act. “This means -FJ 6 of the sentence- that they can find themselves involved in thorny situations and affected by consequences that they have not contributed in any way to creating and, above all, given the legal provision of joint and several liability of all members of the unit familiar, they cannot in any way avoid. In short, they are inevitably chained to a decision by their parents.”
Everything is possible in Granada but no less in Pamplona. A collision of the interests of the parents with the interests of their minor children cannot be ruled out, an eventuality for which the current tax regulations do not provide any solution. Unlike, for example, the regulation offered by the Civil Code to settle those potential conflicts between the members of a hereditary community, in which there is the figure of the “ombudsman for minors”. On this point, the tax legislation grates before the provisions of our Civil Code (article 163): a defender will be appointed when “…in any matter the parents have an interest opposite to that of the unemancipated children”.
Article 39.2 CE entrusts the public powers with the comprehensive protection of children. However, in the tax field, said protection is very defective, if not non-existent.
The TS ruling not only satisfactorily answers the question posed. In addition, it provides two additional considerations of great interest omitted by the parties in the procedural debate.
1st.- Marito did not commit any illegal or fraudulent action. This circumstance deactivates the application of article 42.2.a) of the General Tax Law, a core precept regarding third-party liability for third-party debts. Because? Because joint and several liability is the punishment of activities, behaviors, and painful intentions, of which a minor is always inimputable by operation of law.
2ª.- The child Marito is not a taxpayer for personal income tax. He did not obtain income in the 2010 tax period. Whoever does not obtain income does not produce the taxable event of the tribute. And, therefore, it is impossible for him to be a taxpayer for personal income tax. This is how article 36.2 of the General Tax Law says: “The taxpayer is the taxpayer who performs the taxable event.” Which, by reflex action, flatly rules out Marito’s joint and several liability (article 83 of the Personal Income Tax Law).
