The Superior Court of Justice (“STJ”) recently concluded the judgment of Repetitive Theme No. 1385, bringing greater clarity to taxpayers disputing tax debts in tax enforcement proceedings. The STJ ruled that the Public Treasury cannot refuse bank guarantees or surety bonds offered to secure the judgment solely on the grounds that the order of preference established in the Tax Enforcement Law was not followed.
The discussion revolves around the interpretation of articles 9 and 11 of the Tax Enforcement Law. Although the law provides a list of preferred assets for seizure, beginning with money, in practice the tax authorities have been rejecting guarantees such as bank guarantees and surety bonds simply because they do not occupy the first place in this order. This stance ended up increasing the cost of tax litigation and, in many cases, requiring the immediate freezing of companies' financial resources.
In analyzing the issue repeatedly, the Superior Court of Justice (STJ) rejected this stricter interpretation. The Court made it clear that the legal order of preference does not authorize the automatic refusal of bank guarantees or surety bonds. These instruments must be accepted whenever they are sufficient, regular, and provided by reputable institutions. For a refusal to occur, the Treasury must demonstrate, concretely, that the guarantee is inadequate, and not merely state that it prefers a cash deposit.
The decision follows the line of previous understandings of the STJ itself, which already recognized bank guarantees and surety bonds as effective means of securing tax executions, with the same practical purpose as judicial deposits.
