In this document I will proceed to explain, in the most synthesized way possible, the general characteristics of the remedy of replacement, as well as its scope, development of specific questions and main concepts to take into account in your study.
In the first place, I must indicate that an administrative appeal is a procedure, by which the legitimate administrator requests from the Administration itself the modification or annulment of an administrative act by which it is affected, being the resource object of my analysis one of them in ordinary route, according to the classical classification.
As a main note, I can highlight that it is brought before the same body that dictated the act to be challenged and is resolved by it.
This appeal is only admissible in the face of acts that put an end to the administrative route, therefore it occupies the area in which it is not possible to file an appeal, another type of appeal. Thus, article 116 LRJAP and PAC establishes:
1. “The administrative acts that put an end to the administrative route may be optionally appealed in restitution before the same body that had dictated them or be directly challenged before the contentious-administrative jurisdictional order.
An administrative contentious appeal may not be filed until it is expressly resolved or the presumed dismissal of the appeal for reversal has been filed. ”
For the purpose of the appeal, it is optional, so the interested party decides whether to file it directly or go to the contentious-administrative route. However, once that has been filed, the administrator must respect the resolution period of the same before starting the dispute, even if administrative silence occurs, this is regulated in article 116.2 of the LPC. Said presentation period is one month for express acts and three months for the rest. In the case of administrative silence that I have introduced, this period is also one month.
I refer now to the content of the procedure. The general data required for filing, as we have already studied, in the Register of the administrative body (as a general norm) and as extracted from article 110 LRJAP and PAC: The filing of the appeal must state:
- Name and surname or company name or full name, tax identification number and address of the interested party. In the event that you act through a representative, your complete identification must be included. Body before which the appeal or claim is formulated or the initiation of the procedure is requested. Administrative act or action that is contested or that is the subject of the file, date on which it was issued, number of the file or alphanumeric code that identifies the administrative act being challenged and other data related to it that are deemed appropriate, as well as the claim of the interested party. Address that the interested party indicates for the purposes of notifications. Place, date and signature of the writing or request. Any other established in the applicable regulations.
A period of 10 will be granted to correct the faults and failure to comply with said requirement will determine the filing of the proceedings and the request or the writing will be considered as not filed. The same period will be granted to correct the representation. Attached example model at the end of this document.
The deadlines to file the appeal are established in art. 117:
- "The deadline for filing the appeal is one month, if the act was express. If it were not, the term will be three months and will be counted for the applicant and other possible interested parties, from the day following that in which, according to its specific regulations, the alleged act occurs. After said periods, only an administrative contentious appeal may be filed, without prejudice, where appropriate, to the provenance of the extraordinary appeal for review. The maximum period to dictate and notify the resolution of the appeal will be one month. 3. Against the resolution of an appeal for reinstatement, said appeal may not be filed again ”.
In the case of the allegations. In the event that the interested party wishes to examine the file to carry them out, they must request it during the period for filing the appeal and before the end of said period. Then you can no longer request the examination of the file for these purposes.
Regarding the processing part, I deserve special attention to the suspension of the contested act in replacement.
I must clarify that the mere filing of the appeal will not suspend the execution of the contested act.
The suspension may be requested in the same writ of interposition of the appeal or later, and its effects will be limited to the appeal for reversal. The request will therefore be submitted to the body that dictated the act as I have already advanced at the beginning of this document, which will be competent to process and resolve it.
Only the execution of the act may be suspended:
- When so established in the law; for example, in the Tax Regime, article 224.2 of General Tax Law 58/2003: a- Deposit of money or public securities. b- Guarantee or surety of a solidarity nature of a credit institution or reciprocal guarantee company or surety certificate. c- Personal and solidarity bond of other taxpayers of recognized solvency for the cases established in the tax regulations. When it is appreciated that an error of the arithmetic, material or factual nature has been made. Without guarantee.The sanctions, as long as they are not firm in administrative proceedings, will be automatically suspended without guarantee.
If it is not accompanied by the required guarantees, the suspension will not take effect and will be considered unsolicited. The suspension request will be filed, notifying the interested party.
Effects:
- The suspension will be understood as agreed upon from the date of the request and the agreement must be notified to the interested party. of the suspension.For the exposed case of the Tax Law, when the suspension is requested in the voluntary period of payment of the debt, if it is denied, the term provided for in article 62.2 of the General Tax Law will begin, for the payment of the debt. If you enter within this period, the interest will be paid from the end of the voluntary until the date of entry. If the interests are not paid, they will be settled until the expiration date of said term, without prejudice to those subsequently accrued. When the suspension is requested in the executive period,the denial of the suspension will imply the start of the enforcement procedure, if it has not been started previously.
The decisions denying suspension will be subject to an economic-administrative claim.
As we have studied in this course, within any procedure we can see the instruction phase, where you can contribute the knowledge of the type topo, in particular, when it comes to the allegations and following article 79 of the LPC, you can present allegations in within 10 days:
- Other holders of rights or legitimate interests that have not appeared in the procedure, giving them notice of the existence of the resource. Those person in the procedure, regarding issues not raised by the interested parties that the competent body deems pertinent to examine and resolve.
Regarding the last part of the procedure, the resolution, I must indicate that the body that dictated the appealed act will be competent to hear and resolve the appeal, which will not be able to refrain from ruling. If said act was issued by delegation, the competent body will be the delegated body.
The content of the resolution of the appeal for reversal must be a succinct exposition of the facts and the legal grounds.
Against the resolution of an appeal for reversal, this appeal may never be filed again.
