Power of coercive collection: patent of Corso

Law 1066 of 2006 aimed at the normalization of the State's portfolio and, to this end, imposed certain duties on the entities in charge of collecting public revenues and funds, while providing them with ample correlative powers. Although the purpose of the law was logically necessary, the fact is that the power of coercive collection included therein has become a license for the municipal and district administrations to do whatever they want with their taxpayers.

According to the first paragraph of article 5 of the aforementioned law, the coercive collection processes thus carried out must follow the procedure set forth in articles 823 and subsequent articles of the National Tax Statute - ETN. According to the same, the prerequisite to initiate them is the existence of a notified title (i.e. private and official liquidations, sentences), necessarily executed (i.e. without administrative appeals, or pending nullity and reinstatement lawsuits) and containing an express, clear and enforceable obligation.

In sound logic, after notifying the title, the administration should wait for the expiration of the opportunity to file a claim for nullity and reestablishment of rights against it, before issuing a payment order. This measure, which is as reasonable as it is useful, would avoid unnecessary expenses for the administration, for the jurisdiction and for the parties involved.

In practice, the municipal and district administrations have been incurring in irregular conducts with pernicious results for the administrated parties: 

• The issuance of executive titles in the framework of auditing processes, in which they pretend to give defense opportunities to the administered parties, in order to maintain the formal legality of the same, but abstain from seriously considering the arguments put forward by the latter.
• The notification of payment orders, initiating coercive collection processes, before the expiration of the action to control the titles.
• The refusal to consider the exception that the titles are not enforceable (cf. arts. 831 et seq., ETN).
• The practice of seizures affecting the liquidity of the companies and their suppliers, clients, administrators and employees.
• Prior admission of the claim, the refusal to process the corresponding exception, alleging the expiration of the term to propose it, despite the fact that the Council of State has said that "the opportunity to allege against the coercive collection procedure the filing of a claim against the title, will not always be the term provided in article 830 of the ET. Accordingly, the evidence proving the admission of the claim can be validly provided to the coercive collection procedure at the time the judicial authority issues it" (C. of E, Fourth Section, S. 21893 of 22/02/2018).
• Finally, the delay for several months - which may entail the bankruptcy of an entrepreneur - in straightening out its performance.

In the meantime, we are witnessing the proper conduct of a State that ignores two constitutional mandates, namely: "due process shall apply to all kinds of judicial and administrative proceedings" (art. 29, CP), "are duties of the individual and the citizen: (...) 9. To contribute to the financing of the expenses and investments of the State within concepts of justice and equity" (art. 95, PC), among others.