La anulación de las sanciones tributarias por fallecimiento del infractor en vía jurisdiccional. Conflictos con la naturaleza revisora de la jurisdicción contencioso-administrativa

Abstract

The constitutional principle of the punishment personality does not allow the persistence of the tax sanctions after the death of the offender if these sanctions have not been yet paid. However, in the administrative court there are some practical challenges that make possible to violate this rule. This is the case when the violator dies before the legal process is completed or when the economic-administrative organ does not have knowledge of the decease before emitting its decision. The problem only appears in the administrative court because the reviewing nature of this Jurisdiction prevents to raise new questions when the Administration did not have the possibility to take action on them. After the study of the different positions that the jurisprudence offers, this article analyzes the decision of the Sentence 1050/2017, May 9, of the “Tribunal Superior de Justicia de Andalucía” (Superior Court of Justice of Andalusia) – Branch of Granada –. This sentence declares that, by applying of the sanctioning power principles, it is also possible to determine directly the extinction of the sanction due to the decease of the perpetrator even when the issue is new and was not raised in the previous administrative process. This solution is supported by the exceptionality of the case and the necessity to avoid unnecessary procedures.