The cancellation of the IAE is one of the indications that determine the cessation of activities, but it does not limit the liability of the administrator.
A sole proprietorship is set up with the corporate purpose of operating a business, for example, a hotel and catering business. In May 2010 the entity registers with the IAE under the heading corresponding to the activity "other cafés and bars" and days later under the heading "cafeteria tres tazas", indicating different addresses for the development of the activity.
In May and then in July 2012, the entity deregistered from the IAE under both headings. Months later, the Administration agreed to declare the entity bankrupt, with tax debts, among others, pending payment.
Taking into account that there were other taxpayers in the premises where the activity was carried out, it was considered that the entity had ceased its activities and, therefore, the sole administrator of the company was notified of the initiation of the proceedings for the declaration of subsidiary liability (LGT 43.1.b).
The taxpayer did not agree, and filed an economic-administrative claim with the TEAR of the town in question, which annulled the agreement in the part referring to the settlements after May 2012, the only date of cessation recognised.
Against this decision, the Director of the AEAT's Collection Department lodged an extraordinary appeal for the unification of criteria, as she considered the ruling to be seriously prejudicial and erroneous.
The question is limited to determining whether when an entity carries out several activities belonging to the same branch, although classified under different IAE headings, carried out in different premises and having different IAE deregistration dates, a single date of cessation of the activity must be taken, excluding from the scope of the derivation of liability of its administrator the debts accrued after this time.
In accordance with the case law of the SC, the TEAC establishes that:
1. For the purposes of subsidiary liability (LGT art.43.1.b), the cessation of activities must be complete, definitive and irreversible, a merely partial cessation or temporary suspension of activities not being sufficient. However, the requirement to paralyse the commercial activity must be qualified in each case in order to avoid possible fraudulent conduct, so that the cessation cannot always be identified with the complete disappearance of all types of activity. This can be seen in those cases in which, in order to avoid the liabilities that could be demanded in the payment of tax debts, the existence of a certain activity is simulated or a minimum level of activities is maintained as a result of the simple inertia of commercial traffic.
The cessation of the activities of a commercial entity, without prejudice to the fact that it could be a legal cessation, is, on most occasions, a de facto cessation, i.e. a factual element deduced from indications that lead to the presumption of inactivity, which, among others, may be the lack of activity in the premises, abandonment of the registered office, a significant decrease in purchases and sales, the departure of employees, failure to file self-assessments, filing with negative results or with a significant decrease in their amounts, cancellation of bank accounts, cancellation for IAE purposes, etc. (among others, SC 9-5-13, EDJ 78418, in the same sense 20-4-15).
2. In many cases this de facto cessation is not situated at a specific moment in time, but over the course of a financial year, in accordance with the circumstances which, through the mechanism of proof, provide evidence of this absence of activity (among others, SC 24-1-17, EDJ 3015).
3. The deregistration in the IAE is one of the indications from which the factual cessation of the commercial activity can be inferred, but it cannot be a determining fact to limit the scope of liability, especially bearing in mind that, as in this case, the cessation occurs on different and successive dates.
Based on the above, the TEAC upheld the appeal and annulled the TEAR's decision.
