Tax Liability of Company Directors in Spain: Supreme Court Third vs First Chamber, Penalty or Guarantee? (2026)

Published 24 September 2026 · Bufete Padilla · Tax and insolvency law · Torrevieja, Elche and Moraira

The Spanish Tax Agency (AEAT) has made you, as a company director, personally liable for your company's tax debts. Then comes personal insolvency or the Second Chance Act, and the key question arises: is that derived debt a penalty or merely a guarantee of the tax claim? Today the answer depends on which chamber of the Spanish Supreme Court looks at it, and it decides whether the debt can be discharged.

> Summary in 30 seconds. The Third Chamber (administrative) treats director liability under Article 43.1.a) of the General Tax Act (LGT) as punitive: the AEAT must prove personal fault. The First Chamber (civil) sees the derivation as a guarantee, not a penalty, so in insolvency the claim keeps its original ranking. Since judgment 260/2026, subordinated public claims can be discharged, which turns this split into a question of real money.

For a general explanation of cases, procedure and deadlines, see our [guide to tax joint liability under Art. 42 LGT](https://bufetepadillatorrevieja.com/en/blog/derivacion-responsabilidad-solidaria-tributaria-aeat-lgt-2026). This article focuses on the conflict between chambers and how to use it in defence.

1. Third Chamber: director liability as punitive power

Building on Constitutional Court judgment 85/2006, the Third Chamber has held (judgments 729/2023, 1217/2023, 594/2025, 901/2025 and 766/2026) that:

• The AEAT must prove both the objective element (director status and company infringement) and the subjective one (the director's own culpable conduct).
• If the original penalty lacks reasoning on fault, the whole derivation falls.
• Strict liability, boilerplate reasoning and reversing the burden of proof are not allowed; mere registration as a director is not enough.

But it does not apply this to all liability: judgments 537/2023 and 538/2023 hold that joint liability under Art. 42.2.a) LGT (hiding assets) is not punitive.

2. First Chamber: a guarantee of someone else's debt

Civil judgments 315/2020, 316/2020, 664/2020 and 1578/2025 hold that the derived claim is not subordinated as a fine in the director's insolvency; each item keeps its original ranking. Reasons: the LGT does not list derivation among penalties, penalties are not part of the tax debt (Art. 58.3), and the derivation creates no new claim.

3. Why it matters now: insolvency and discharge

Supreme Court judgment 260/2026 of 18 February held that subordinated public claims can be discharged under the Second Chance regime. If the entire derived claim were a penalty, it would be subordinated and dischargeable; under the civil chamber's view, only the original penalty portion is.