General Information

Introduction

Deposit of the payment and other financing resources of the Social Security System will be made by the persons responsible for the payment and any others responsible for payment of debts to the Social Security within the voluntary payment period. In the case of failure to fulfil this obligation, collection will be carried out by an executive procedure.

This involves the establishment of a procedure for executive collection of the debts for payments and other resources of the Social Security System and also requires having the appropriate organisation structures and adequate material and personnel resources to carry out the aforementioned.

The executive collection procedure for debts for payments and other resources of the Social Security System that are subject to collection, is exclusively administrative, the Central Treasury for the Social Security being the competent authority to deal with the same and resolve all its incidences, as responsible for the collection function of the Social Security System.

Initiation of the Procedure

The executive collection procedure is initiated automatically once the voluntary payment period has elapsed without the debt having been paid and regardless of any contentious-administrative appeal that the interested parties may file.

The initiation of the executive procedure automatically produces the application of a 20 or 35 percent surcharge, whichever appropriate.

This procedure is carried out by judicial order in all its steps and once it has been initiated it can only be suspended in the following cases:

  1. When there is a resolution granting deferment of the debt.
  2. When an appeal is presented, as long as sufficient guarantee on the debt is given or its amount deposited, including where appropriate the corresponding interest, as well as the demand surcharge and 3 percent of the principle and surcharge and interest as an amount on account of the regulatory established costs.

The actions taken during the executive collection procedure, just as any other action taken in collection management, can be challenged.

The Enforcement Providence

Once the executive procedure has been initiated, after the voluntary payment periods expressed in the execution document have elapsed without payment being made, the enforcement providence will be issued, by virtue of which the executive action against the assets of the debtor will be taken.

The enforcement providence will contain express reference to the outstanding debt stated in the corresponding execution document and a clear warning to the debtor that, should the debt not be settled within a period of fifteen days, his or her assets will be embargoed in an amount sufficient to cover payment of the principle of the debt, surcharge, accrued late payment penalty, and where appropriate, the costs of the procedure.

The late payment penalty accrued up until payment of the debt, will be demandable fifteen days after notification of the enforcement providence.

The late payment penalty rate will be the legal interest on money in force at any time during the period of accrual, plus 25 percent, unless established otherwise under the General State Budget Act.

As regards the accrual of interest, the following should be differentiated:

  1. The interest on the principle of the debt that accrues from the end of the regulatory payment period.
  2. The surcharge interest that accrues once fifteen days has elapsed following notification of the enforcement providence.

Costs in the enforcement procedure are understood as those that are produced during the enforced execution procedure. The costs produced will, in any case, be charged to the party against whom the enforcement is carried out, from whom they will be demanded.

The following expenses are considered costs:

  1. Those for investigation and enquiries regarding the elements that make up the assets of the debtor .
  2. Surveyors fees and other fees paid to persons who intervene in the procedure, as well as those that accrue for appraisal and transfer of the embargoed assets.
  3. Fees and duties payable for the issue of copies, certificates, abstracts, testimonies and similar documents that need to be requested in order to carry out the procedure correctly, unless these are obtained from registries and offices that provide them free of charge.
  4. Those produced by the deposit and administration, where appropriate, of the embargoed assets, including dismantlement, packaging, preparation, transport, storage, custody, upkeep and conservation.
  5. Any other expenses that are essential for the execution, with prior authorisation from the competent Provincial Directorate of the Central Treasury for Social Security.

The enforcement providence will be notified to the debtor by means of notification addressed to the debtor, containing the following details:

  1. Identification details of the subject responsible for payment of the debt.
  2. Concept and amount of the outstanding debt for principle and surcharge, as well as the period to which it corresponds.
  3. Indication that the debt has not been paid.
  4. Date of issue.
  5. Warning that if the payment is not made within a period of fifteen calendar days following the notification, late payment penalty accrued from the end of the regulatory payment period will be demandable.
  6. Warning that once the enforcement providence is final in the administrative procedure, without payment having been made, administrative execution of the guarantees in place will be carried out and, when appropriate, embargo of the assets of the person against whom the enforcement procedure has been brought, in an amount sufficient to cover the principle of the debt, the surcharges, interests, and the costs produced in the procedure and those that it is estimated will arise up to the date of payment or the adjudication of the assets in favour of the Social Security.
  7. Express mention that the only appeal admissible against the enforcement providence will be for the motives established, duly justified, as specified below:
    • Payment
    • Expiry
    • Material or arithmetical error in the debt assessment
    • Cancellation or deferral of the debt or suspension of the procedure
    • Failure to notify the debt claim, when appropriate, the settlement report or the resolutions that arise from these or from the self assessments of the payments.

Filing of an appeal will suspend the enforcement procedure, without the need to present a guarantee, until notification of the resolution on the appeal.

If an express resolution is not issued within a period of three months the appeal presented will be understood to have been rejected, in the manner and with the effects established under articles 43 and 44 of Law 30/1992, of 25th November, on Law and Jurisdiction of Public Administration Offices and Common Administrative Procedure.

Enforcement providence that has not been appealed against and those against which appeals have been presented, but were rejected, will be notified, with indication of the execution document by virtue of which they were dictated, to the corresponding Executive Collection Unit for it to proceed with the embargo of the assets of the debtor and any other actions that correspond within the enforcement procedure.

Embargo of Assets

The Executive Collection Unit may obtain information on the assets of the debtor from Public Registries, Entities or public or private persons, including the person responsible for the payment, as well as any other information that may be obtained by investigation using the means it considers appropriate.

Without prejudice to the aforementioned, the debtor against which the enforcement is brought, at the request of the Executive Collector, will declare his assets and property rights, with the precision necessary to guarantee his or her liabilities.

If the debtor fails to fulfil this duty, any alteration or preterition to be applied in the embargo of the assets will not constitute cause for challenging the enforcement procedure.

The Executive Collectors of the Social Security and their collaborators hold the faculty to carry out the material actions necessary for the apprehension of the assets under embargo, even in situations of refusal, obstruction, inhibition or repeated absence of the debtor or the depository of the assets.

The embargoed assets will remain in deposit in the places or with the entities where they are held if, in the opinion of the executive collector of the Social Security, they guarantee security and solvency. 

The depository is obliged to keep and conserve these assets, to exhibit them when the executive collection unit so require, and to hand them over to the person designated by the executive collector, carrying out these duties with due diligence. Furthermore, it is the duty of the depository to inform as requested by the collection organisations and to fulfil the measures agreed by the latter for the best administration and conservation of the assets.

Transfer of the Embargoed Assets

The embargoed assets are valued in accordance with market prices and normal appraisal criteria.

The Executive Collection Unit will notify the appraisal to the debtor who, in the event of discrepancy, will present a contradictory appraisal within the period of fifteen days, extendable when advisable due to the circumstances. If the higher does not exceed 20 percent of the lower, the value of the assets will be taken as that of the higher appraisal.

When no agreement is reached between the parties, the collection entity will request from the Professional Societies or appropriate professional or mercantile associations, the designation of another appraisal surveyor, who will carry out another appraisal within a minimum period of fifteen days as from his or her designation. Such appraisal will have to be within the limits of those previously carried out and will be the one finally applied.

The appraisal amount will serve as the auction or tender price, deducting from this the preferential property charges or encumbrances with priority over the right of the Central Treasury for Social Security, should these exist.

After completing the appraisal and division into lots, in the case of property assets, the assets of one sole debtor will be transferred, by means of public auction or  tender:

  1. The ordinary procedure for realising the embargoed assets will be that of public auction.
  2. The Provincial Directorate can authorise the transfer by tender, in the case of property or moveable assets, when this is advisable due to the circumstances, the volume or the value of the assets. 

The assets will be delivered to the purchaser once the agreed price has been paid.

Finalisation of the Enforcement Procedure

The Enforcement Procedure will finalise when all the debts claimed, including principle, surcharges, interest where appropriate and costs, have been settled.

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