The Single Ordered Text of Law No. 26979, Law of Coercive Execution Procedure is approved, PERU
Peruvian Legal Information System of the Ministry of Justice and Human Rights
Updated as of: December 14, 2021
The Single Ordered Text of Law No. 26979, Law of Coercive Execution Procedure is approved
SUPREME DECREE No. 018-2008-JUS
CONCORDANCES: DS N ° 069-2003-EF (REGULATION)
OTHER AGREEMENTS
THE PRESIDENT OF THE REPUBLIC
CONSIDERING:
That, since the promulgation and publication of Law No. 26979, Law of Coercive Execution Procedure, legal provisions have been approved that have supplemented and / or modified its text, as is the case of Laws No. s. 28165 and 28892;
That, through the approval of a Single Orderly Text, the modifications made to a legal device are consolidated in order to compile all the current regulations in a single text and facilitate its handling;
That, given the importance of compliance with the Coercive Execution Procedure Law for the State and citizens in general, it is necessary to have a single text containing its current provisions;
In accordance with the provisions of the Political Constitution of Peru, in Law No. 29158 - Organic Law of the Executive Power and in Decree Law No. 25993, Organic Law of the Justice Sector;
DECREE:
Article 1. - Purpose
Approve the Single Ordained Text of Law No. 26979, Law of Coercive Execution Procedure, the text of which is an integral part of this Supreme Decree.
Specify that in accordance with the provisions of subsection e) of article 9 of Legislative Decree No. 1014 - Legislative Decree that establishes measures to promote investment in public services and public infrastructure works, the third paragraph of article 3 and the Third Provision Complementary and Transitory of the Single Ordered Text approved by this Supreme Decree are in abeyance.
Section 3. - Endorsement
This Supreme Decree will be endorsed by the Minister of Justice.
Given at the Government House, in Lima, on the fifth day of the month of December of the year two thousand and eight.
ALAN GARCÍA PÉREZ
Constitutional President of the Republic
ROSARIO DEL PILAR FERNÁNDEZ FIGUEROA
Minister of Justice
SINGLE ORDERED TEXT OF LAW No. 26979 - COACTIVE ENFORCEMENT PROCEDURE LAW
CHAPTER I
GENERAL DISPOSITION
Article 1.- Object of the law.
This Law establishes the legal framework for acts of coercive execution that correspond to all entities of the Public Administration. Likewise, it constitutes the legal framework that guarantees Obligors to the development of a due coercive procedure.
Article 2.- Definitions.
For the purposes of this law, it will be understood by:
a) Entity or Entities.- Those of the National, Regional and Local Public Administration, which are empowered by law to coercively demand the payment of a credit or the execution of an obligation to do or not to do.
b) Obliged: Any natural person, legal person, undivided succession, conjugal partnership, de facto partnership and the like, that is subject to a coercive enforcement procedure or a prior precautionary measure;
c) Coercive Executor or Executor: The official responsible for the Coercive Execution Procedure;
d) Coercive Auxiliary or Auxiliary: One whose function is to collaborate with the Executor;
e) Procedure: The set of administrative acts destined to the fulfillment of the Obligation matter of coercive execution;
f) Obligation: To the unpaid credibility of a tax or non-tax nature, duly updated, or to the unfulfilled performance of a provision to do or not to do in favor of an Entity of the National Public Administration, originating from legal relations of public law.
Article 3.- Function of the Coercive Executor.
The Coercive Executor is the holder of the Procedure and exercises, on behalf of the Entity, the actions of coercion to comply with the Obligation, in accordance with the provisions of this Law. His position cannot be delegated.
In the case of regional and local governments that have a Coercive Executor and Auxiliary and that need to execute an embargo measure outside their territorial jurisdiction in fulfillment of their functions, they must exhort any Coercive Executor of the province where they want to execute the measure of However, in accordance with the provisions of Title IV of the Third Section of the Civil Procedure Code. Regarding the same coercive procedure, no more than one Coercive Executor may be released.
The existence of management agreements does not imply the delegation of the enforcement function. (*)
(*) In accordance with Article 2 of Supreme Decree No. 018-2008-JUS , published on December 06, 2008, it is specified that pursuant to the provisions of subsection e) of Article 9 of Legislative Decree No. 1014 - Legislative Decree that establishes measures to promote investment in public services and public infrastructure works, this paragraph is pending.
Article 3A.- Of the coercive executor exhorted.
The coercive executor called for is the only competent official empowered to carry out actions of the coercive execution procedure, which are expressly stated in the order under responsibility; being subject to the application of the provisions set forth in article 22 of this Law.
If the requested Executor notices the existence of irregularities or violations of the ordinance in matters of coercive enforcement or the General Administrative Procedure Law, or if these were communicated to him by the Obligor or third party in charge of making the retention, he will submit the letter of exhortation under his responsibility. to the exhorting Coercive Executor, so that he may correct the observations made. In the latter case, the coercive enforcement procedure will be suspended, as long as the indicated irregularity is corrected, in accordance with the provisions of article 16, numeral 16.5, of this Law.
Article 4.- Requirements of the executor.
4.1 The executing agency must meet the following requirements:
a) To be a citizen in exercise and to be in full enjoyment of their civil rights;
b) Have a lawyer's degree issued or revalidated in accordance with the law;
c) Not having been convicted or prosecuted for a malicious crime;
d) Not having been dismissed from the judicial career or from the Public Ministry or from the Public Administration or from state companies due to disciplinary measures, or from private activity due to serious labor reasons or misconduct;
e) Have knowledge and experience in administrative and / or tax law; Y,
f) Not having any other incompatibility indicated by law.
4.2 In the case of Municipalities that are not located in the provinces of Lima and Callao, as well as in the capitals of provinces and departments, the requirement established in paragraph b) above will not be enforceable, as long as the Executor has two (2) years of experience. higher instruction or its equivalent in semesters.
Article 5.- Function of the Coercive Assistant.
The function of the Auxiliary is to collaborate with the Executor, delegating the following powers to him:
a) Processing and guarding the coercive file under his charge;
b) Prepare the different documents that are necessary to promote the Procedure;
c) Carry out the procedures ordered by the Executor;
d) Sign the notifications, seizure acts and other documents that warrant it;
e) Issue the pertinent reports;
f) Attest to the acts in which they intervene in the exercise of their functions.
Article 6.- Requirements of the Assistant.
6.1 The Assistant must meet the following requirements:
a) To be a citizen in exercise and to be in full enjoyment of their civil rights;
b) Accredit at least the third year of university studies completed in specialties such as Law, Accounting, Economics or Administration, or its equivalent in semesters;
c) Not having been convicted or prosecuted for a malicious crime;
d) Not having been dismissed from the judicial career or from the Public Ministry or from the Public Administration or from state companies due to disciplinary measures or from private activity, due to serious labor reasons or misconduct;
e) Have knowledge and experience in administrative and / or tax law;
f) Not having a kinship relationship with the Executor, up to the fourth degree of consanguinity and / or second degree of affinity;
g) Not have any other incompatibility indicated by law.
6.2 In the case of Municipalities that are not located in the provinces of Lima and Callao, as well as in the capitals of provinces and departments, the requirement established in paragraph b) above will not be enforceable, it being sufficient that the Assistant has a year of higher education or its equivalent in semesters.
Article 7.- Appointment and remuneration.
7.1 The designation of the Executor as that of the Auxiliary will be made through a public merit contest.
7.2 Both the Executor and the Auxiliary will join as officials of the Entity they represent and will exercise their full-time and full-time duties.
7.3 The Executor and the Assistant will receive a permanent remuneration, being prevented from receiving commissions, percentages or participations whose calculation is made based on the amounts recovered in the Procedures under their charge.
CHAPTER II
PROCEDURE FOR THE COACTIVE EXECUTION OF NON-TAX OBLIGATIONS
Article 8.- Scope of application.
This chapter is exclusively applicable to the execution of coercively enforceable non-tax obligations arising from legal relationships under public law.
Article 9.- Enforceability of the Obligation.
9.1 A coercively enforceable obligation is considered to be the one established by means of an administrative act issued in accordance with the law, duly notified and that has not been the subject of any objectionable appeal in the administrative channel, within the time limits of the law or in which a firm resolution has fallen confirming the Obligation. The costs and expenses incurred by the Entity during the processing of said Procedure will also be required in the same Procedure.
9.2 The guarantees granted in favor of the Entity will also be executed in accordance with the law, within the Procedure established in this regulation, when appropriate.
Article 10.- Costs.
10.1. The Executor, under responsibility, will liquidate the costs adhering to the tariff of procedural costs approved in accordance with the provisions of this law. In the event of non-compliance, the Obligor may demand jointly and severally from the Executor, Auxiliary or the Entity the return of any excess, including the corresponding interest.
10.2. In no case will costs and expenses be collected when the collection has been improperly initiated in contravention of this law.
CONCORDANCES: RM N ° 557-2009-MTC-01 (Approve Tariff of Expenses and Procedural Costs of Coercive Procedures by the Ministry)
Article 11.- Onerous collections.
Based on the cost of the Procedure established by the Entity and due to procedural economy, Procedures will not be initiated with respect to those debts that, due to their amount, are onerous, leaving the Entity's right to initiate the Procedure for accumulation of said debts expeditious. when it deems it pertinent.
Article 12.- Acts of compulsory execution.
The acts of compulsory execution regulated in this chapter are the following:
a) Collection of public income other than tax, born by virtue of a legal relationship governed by public law, provided that it corresponds to the obligations in favor of any Entity, from its goods, rights or services other than commercial obligations or civil and other private law;
b) Collection of administrative fines other than tax, and financial obligations arising from sanctions imposed by the Judicial Power;
c) Demolitions, construction of fences or similar; urgent repairs in buildings, show rooms or public places, closing of places or services; and, adaptation to urbanization regulations or municipal or similar provisions, except for special regimes;
d) Any act of coercion for the collection or execution of works, suspensions, stoppages, modification or destruction of the same that come from administrative acts of any Entity, except special regimes.
" e) Execution of the launching or taking possession of the property necessary for the execution of infrastructure works declared of public need, national security, national interest and / or of great importance by Law, as well as infrastructure works concessioned or delivered to the private sector through any other form of public-private partnership. ”(*)
(*) Literal incorporated by the First Modifying Complementary Provision of Law No. 30025 , published on May 22, 2013 .
Article 13.- Precautionary measures.
13.1 The Entity, after notification of the administrative act that serves as a title for the fulfillment of the Obligation and although a challenge appeal filed by the Obligatory is in process, exceptionally and when there are reasons that allow objectively to presume that the coercive collection may become in unsuccessful, it may order that the Executor take any of those established in article 33 of this Law, as a preliminary precautionary measure, for the amount that satisfies the debt in collection.
13.2 The preliminary precautionary measures, referred to in the preceding paragraph, must be supported by the corresponding administrative act and recorded in a reasoned resolution that precisely determines the duly notified Obligation.
13.3 The preliminary precautionary measure provided may not exceed a period of thirty (30) business days. Once said period has expired, the measure will expire, unless a challenge has been filed, in which case it may be extended for a maximum period of thirty (30) business days, after which it will expire definitively. After forty-eight (48) hours after the expiration, in one case or another, the precautionary measure must be canceled immediately and ex officio and the goods affected by said measure must be returned. The provisions are of the same application in the event that third parties have in their possession assets of the Obligor, affected by precautionary measures in the form of kidnapping or retention.
13.4 The preliminary precautionary measures taken before the start of the Procedure may not be executed, as long as they do not become definitive, after the said procedure has started and the period referred to in article 14 of this Law has expired, after issuing the administrative act. corresponding and provided that the other formalities are complied with.
13.5 By means of a preliminary precautionary measure, the capture of motorized vehicles may not be ordered.
13.6 When the collection refers to obligations to give a sum of money, the executor will immediately lift the preliminary precautionary measure if the Obligor grants a letter of guarantee or surety policy issued by a company of the financial or insurance system for the same amount ordered retain, within the period indicated in numeral 13.3.
13.7 The Executor, by order of the Entity, may execute the necessary measures and provisions in the case of work stoppages, demolition or urgent repairs, suspension of activities, closure of public premises, or other acts of coercion or forced execution, linked to the fulfillment of obligations to do or not to do, and provided that the supervision of such activities falls within the competence of the Entity and the health, hygiene or public safety is in danger, as well as in cases in which the regulations on urban planning are violated. and zoning . (*)
(*) Paragraph modified by the Second Modifying Complementary Provision of Law No. 30025 , published on May 22, 2013, the text of which is as follows:
" 13.7 The coercive executor, by order of the entity, may execute the necessary measures and provisions in the case of work stoppages, demolition or urgent repairs, suspension of activities, closure of public premises, launching or taking possession or other acts of coercion or forced execution, linked to the fulfillment of obligations to do or not to do, and provided that the control of such activities falls within the competence of the entity and health, hygiene, public safety and public need are in danger, as well as in the cases in which the regulations on urban planning and zoning are violated. "
13.8 In the case of the collection of public revenue referred to in article 12, literals a) and b) of this Law, local governments may only execute, as a preliminary precautionary measure, the embargo in the form of intervention in information provided for in the Article 33, literal a), of this Law.
Article 14.- Beginning of the Procedure.
14.1 The Procedure begins with the notification to the Obligor of the Coercive Execution Resolution, which contains a mandate to comply with a Enforceable Obligation in accordance with article 9 of this Law; and within a period of seven (7) working days of notification, under warning of dictating any precautionary measure or initiating the forced execution of the same in case these had already been issued based on the provisions of article 17 of the present Law.
14.2 The Coercive Executor may only initiate the coercive execution procedure when the administrative act that serves as the execution title has been duly notified, and provided that the term for filing the corresponding administrative appeal has not expired and / or has been presented by the Obligor within it.
Article 15.- Resolution of Coercive Execution.
15.1 The resolution of coercive execution must contain, under penalty of nullity, the following requirements:
a) The indication of the place and date on which it is issued;
b) The serial number that corresponds to it within the file or notebook in which it is issued;
c) The name and address of the obligor;
d) The identification of the resolution or administrative act generating the Obligation, duly notified, as well as the express indication of the fulfillment of the obligation within a period of seven (7) days;
e) The total amount of the debt that is the object of collection, indicating in detail the amount of the administrative fine, as well as the interests or, where appropriate, the specification of the obligation to make or not to make the subject of the Procedure;
f) The legal basis on which it is based; Y,
g) The subscription of the Executor and the respective Auxiliary. The incorporation of the mechanized signature will not be accepted as valid, except in the case of collection of fines imposed for traffic offenses and / or regulations related to urban transport.
15.2 The coercive enforcement resolution will be accompanied by a copy of the administrative resolution referred to in literal d) of the previous numeral, its corresponding proof of notification and receipt that includes the date it was carried out, as well as the proof of having been consented or caused a state.
Article 16.- Suspension of the procedure.
16.1 No administrative or political authority may suspend the Procedure, with the exception of the executor who must do so, under responsibility, when:
a) The debt has been extinguished or the obligation has been fulfilled;
b) The debt or obligation is prescribed;
c) The action is brought against a person other than the Obligor;
d) Notification to the Obligor of the administrative act that serves as a title for the execution has been omitted;
e) The term for the presentation of the administrative appeal for reconsideration, appeal, review or contentious-administrative claim presented within the period established by law against the administrative act that serves as the title for the execution, or against the administrative act that determines joint and several liability in the case contemplated in article 18, numeral 18.3, of this Law;
f) There is a judicial or extrajudicial liquidation agreement or creditors' agreement, in accordance with the pertinent legal norms or when the Obligor has been declared bankrupt;
g) There is a resolution granting postponement and / or payment installments;
h) In the case of companies in the process of asset restructuring under the provisions of Law No. 27809, General Law of the Bankruptcy System, or regulation that substitutes or replaces it, or is included within the scope of Decree Law No. 25604 ; and,
i) When it is proven that the payment of the non-tax obligation in question has been complied with before another Municipality that attributes the same territorial jurisdiction due to conflict of limits. Once the conflict of jurisdiction has been elucidated, if the Municipality that initiated the coercive collection procedure is the territorially competent one, it will have expedited its right to repeat against the Municipality that made the collection of the non-tax obligation.
16.2 Additionally, the coercive enforcement procedure must be suspended, under responsibility, when there is a mandate issued by the Judicial Power in the course of an amparo or contentious-administrative process, or when a precautionary measure is issued within or outside the contentious-administrative process. In such cases, the suspension of the procedure must occur within the business day following the notification of the court order and / or precautionary measure or of the disclosure of the same by the executed or by a third party in charge of withholding, in the latter case , by writing attaching a copy of the injunction or precautionary measure and without prejudice to the provisions of article 23 of this Law in relation to the demand for judicial review.
16.3 The Obligor may request the suspension of the Procedure provided that it is based on any of the causes provided in this article, presenting the corresponding evidence to the Executor.
16.4 The Executor must expressly pronounce on what is requested, within the following eight (8) business days. Once said period has expired without express pronouncement, the Executor will be obliged to suspend the Procedure, when the Obligor accredits the administrative silence with the charge of receiving his request.
16.5 Once the Procedure is suspended, the precautionary measures that have been blocked will be lifted.
16.6 Notwithstanding the provisions of the preceding paragraphs, the Coercive Executor is subject to the decision of the Entity that he represents and of which he is the agent, which at any time has the power to suspend the coercive procedure, by means of an act administrative express.
In the event that the competent administrative or judicial authority revokes the Entity's decision that gave rise to the Procedure, the latter will suspend the coercive execution procedure, under responsibility, issuing the corresponding order to the Coercive Executor, within a period that does not It will exceed three (3) business days after notification of the revocation.
16.7 The suspension of the coercive execution procedure of the main Obligation entails the suspension of any other procedure with respect to all Obligations derived from it.
Article 17.- Precautionary Measures.
17.1. Once the term of seven (7) business days referred to in Article 14 has expired without the Obligor having complied with the mandate contained in the Coercive Execution Resolution, the Executor may order any of the precautionary measures established in Article 33 to be locked. of this law, or, where appropriate, will forcefully execute the obligation to do or not to do. The Obligor shall bear the expenses incurred by the Entity to carry out the Procedure.
17.2. In the case of seizure in the form of registration, the amount of the registration fees or other rights charged for the entry in the Public Registry or other Registry, must be paid by:
a) The Entity, with the proceeds of the auction, after obtaining it, or when the embargo had been unduly blocked, or;
b) The Obligor, on the occasion of the lifting of the measure.
Article 18.- Obligation and responsibility of the third party.
18.1. The third party may not inform the Obligor of the execution of the precautionary measure until it is carried out. If the third party denies the existence of credits and / or assets, even when they exist, he will be obliged to pay the amount he failed to withhold, without prejudice to any criminal liability that may arise.
18.2. Likewise, if the third party fails to comply with the order to withhold and pays the Obligor or a designated person on his behalf, he will be obliged to pay the Entity the amount that he should have withheld.
18.3 The imputation of joint and several liability to the third party is determined by means of a resolution issued by the same body of the entity that determined the Obligation that is the subject of the coercive enforcement procedure in process and is notified in accordance with the Law.
The resolution that imputes responsibility to the third party may be subject to administrative challenge through the resources provided for in the Law of General Administrative Procedure. The coercive procedure that is initiated for the compulsory execution of said obligation, runs independently of the main procedure.
18.4. The measure will be maintained for the amount that the Executor ordered to retain the third party and until it is delivered to the Executor.
18.5. In the event that the seizure does not cover the debt, it may include new accounts, deposits, custody or others owned by the Obligor, which shall not exceed the amount owed.
Article 19.- Dismissal.
The Executor may only make use of measures such as dismissal or similar with prior judicial authorization, when there are circumstances that impede the development of the proceedings, and provided that said situation is verified by personnel of the police forces. For this purpose, the Executor must submit a motivated request before any Specialized Civil Judge, who must resolve within a term of twenty-four (24) hours, without transferring it to the other party, under responsibility.
Article 20.- Third party ownership.
20.1. The third party claiming ownership of the seized asset or assets may file third-party property with the Executor, at any time before the auction of the asset begins.
20.2. The property third party will be processed in accordance with the following rules:
20.2.1. It will only be admitted if the third party proves his right with a private document of a certain date, public document or other document, which reliably proves the ownership of the goods before the precautionary measure has been entered.
20.2.2. Once the third party of property is admitted, the Executor will suspend the auction of the goods object of the measure and will transfer the third party to the Obligor for it to be acquitted within a period of no more than five (5) business days following the notification. Once the term has expired, with or without the Obligor's reply, the Executor will resolve the third party within the following three (3) business days, under responsibility.
20.2.3. The resolution issued by the Executor exhausts the administrative procedure, and the parties may contradict said resolution before the Judicial Power.
20.3. In everything not provided for in this article, the pertinent regulations will apply, regarding the third party process, contained in the Civil Procedure Code.
Article 21.- Appraisal and auction.
21.1. The appraisal and auction of the seized goods will be carried out in accordance with the rules established for the case by the Civil Procedure Code.
21.2. From the proceeds of the auction, the Executor will collect the amount of the debt duly updated, in addition to the respective costs and expenses, delivering to the Obligor and / or the third party, if applicable, the resulting remainder.
21.3. The auctioneer designated to conduct the auction must issue an award policy, which must contain the requirements established in the regulations on payment vouchers, so as to guarantee the successful bidder to support expense or cost for tax purposes and / or use the tax credit or the deductible credit.
Article 22.- Responsibility.
Without prejudice to the corresponding criminal and / or administrative liability, both the Executor, the Assistant and the Entity, will be jointly and severally liable for the damage caused, in the following cases:
a) When a Procedure is initiated without the existence of an administrative act or resolution that determines the Obligation;
b) When a Procedure is initiated without the administrative act or resolution determining the Obligation having been duly notified;
c) When the Procedure is initiated without waiting for the expiration of the term established by law, to challenge the act or administrative resolution that determines the Obligation;
d) When the Procedure had not been suspended despite the fact that the Obligor had proven the positive administrative silence in a timely and reliable manner;
e) When the withholding order on excess amounts withheld is not lifted, within forty-eight (48) hours following the notification issued by the withholding agent;
f) When it executes the precautionary measures and / or the guarantees offered in contravention of the provisions of this law;
g) When the amount obtained by the execution of the guarantees is not destined to the cancellation or amortization of the debt;
h) When the provisions of the Tax Court are not complied with, or in the cases that correspond according to law; Y,
i) When the procedure established for the third party property referred to in this law is breached.
j) When precautionary measures are taken on assets that have the quality of unattachable expressly established by Law.
The demand for patrimonial responsibility of the Executor, the Assistant or the Entity, will be established according to the procedural channels provided in Law No. 27584, Law of the Administrative Litigation Process.
Article 23.- Judicial review of the procedure.
The coercive enforcement procedure may be subjected to a process that is exclusively aimed at judicial review of the legality and compliance with the standards set forth for its initiation and processing, for the purposes of which the provisions detailed below apply:
23.1 The obligee, as well as the third party on whom the imputation of joint liability referred to in article 18 of this Law has fallen, are empowered to file a claim before the Superior Court, in order to carry out the review of the legality of the coercive enforcement procedure, in any of the following cases: (*)
(*) Extreme modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.1 The obligated party, as well as the third party on whom the imputation of joint and several liability referred to in article 18 of this Law has fallen, are empowered to file a claim before the Specialized Administrative Litigation Judge or the jurisdictional body that makes its times, in order to carry out the review of the legality of the coercive execution procedure, in any of the following cases: "
a) When a coercive enforcement procedure has been initiated, the retention of assets, securities and funds in checking accounts, deposits, custody and others, as well as the credit rights of which the obligated or jointly liable party has been ordered owner and that are in the power of third parties, as well as any of the precautionary measures provided for in article 33 of this Law.
b) After the coercive enforcement procedure has concluded, within a period of fifteen (15) business days after notification of the resolution that puts an end to the procedure.
23.2 The judicial review process will be processed through the contentious-administrative process in accordance with the summary process provided for in article 24 of the Law that regulates the contentious-administrative process, without prejudice to the application of the provisions set forth in this article. (*)
(*) Numeral modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.2 The process of judicial review of the coercive enforcement procedure will be processed in accordance with the rules of the urgent process provided for in article 24 of Law 27584, Law that Regulates the Contentious-Administrative Process, without prejudice to the application of the provisions provided in this article. "
23.3 The mere presentation of the demand for judicial review will automatically suspend the processing of the coercive execution procedure until the issuance of the corresponding pronouncement of the Superior Court, the provisions of article 16, numeral 16.5 of this Law being applicable.
The Obligor or the company to whom joint and several liability subject to coercive enforcement is imputed, will deliver to third parties a simple copy of the charge for filing the demand for judicial review, which will constitute a sufficient element for them to refrain from making withholdings and / or proceed. upon the delivery of the goods on which a precautionary seizure measure has fallen, as well as making new withholdings, under responsibility, while the suspension of the procedure lasts . (1) (2) (3)
(*) Numeral modified by the Sole Article of Law No. 30185 , published on May 06, 2014 , the text of which is the following:
" 23.3 The mere presentation of the demand for judicial review will automatically suspend the processing of the coercive execution procedure, only in the cases of administrative acts that contain obligations to give, until the issuance of the corresponding pronouncement of the Superior Court, the provisions being applicable in article 16, numeral 16.5 of this Law. (*)
(*) Paragraph modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.3 The mere presentation of the request for judicial review will automatically suspend the processing of the coercive enforcement procedure only in cases of administrative acts that contain obligations to give until the issuance of the corresponding pronouncement of the Specialized Administrative Judge or the jurisdictional body that take their place, the provisions of article 16, numeral 16.5, of this Law being applicable. "
The obligee or the company to whom joint and several liability is imputed subject to coercive enforcement, will deliver to third parties a simple copy of the charge for filing the demand for judicial review, which will constitute a sufficient element for them to refrain from making withholdings and / or proceed. upon the delivery of the goods on which a precautionary seizure measure has fallen, as well as making new withholdings, under responsibility, while the suspension of the procedure lasts. "
(1) In accordance with Article 35 of Supreme Decree No. 009-2009-PCM , published on February 17, 2009 , the challenge in court of INDECOPI resolutions or the judicial review of the coercive execution procedure, only suspends the execution coercive, when the interested party requests it in writing to the Coercive Executor of INDECOPI, attaching the charge of filing the claim filed within the legal term and the original copy of the surety letter referred to in article 19 of the Organization Law. and Functions of INDECOPI approved by Legislative Decree No. 1033. The validity of the surety letter is an indispensable condition to keep the coercive procedure suspended.
(2) In accordance with Numeral 19.4 of Article 19 of Legislative Decree No. 1033 , added on September 02, 2010 by the Second Supplementary Modifying Provision of Law No. 29571 , effective thirty (30) calendar days from the the day after its publication, it is provided that in those cases in which the legality and compliance with the rules established for the initiation and processing of the coercive enforcement procedure through a request for judicial review is submitted for review by the competent judicial body, the enforcement Coercive will only be suspended if compliance with the obligation is guaranteed by a surety letter, which must meet the same requirements as those indicated in article 35 of the Organization and Functions Regulations of Indecopi, approved by Supreme Decree No. 009-2009-PCM.
(3) In accordance with the Eleventh Final Complementary Provision of Law No. 30076 , published on August 19, 2013 , the provisions of this paragraph do not apply to cases of imposition of transit tickets. In these cases, the presentation of the demand for judicial review does not suspend the execution of the coercive charges for the application of traffic tickets, except for a court order.
23.4 The Superior Court shall issue a pronouncement on the request for review on the sole merit of the documents presented, without prejudice to the provisions of numeral 23.2.
If the Superior Court does not issue a resolution within sixty (60) business days from the filing of the claim, the suspension of the coercive enforcement procedure will be maintained, including during the processing of the appeal before the Supreme Court to which it refers. numeral 23.8, provided that the plaintiff of his choice, present in the process a surety policy, irrevocable, unconditional and immediately enforceable surety letter, issued by a local bank of the first order in the name of the creditor entity for the amount of the obligation renewable every six (6) months; or make the deposit of the required amount before the Banco de la Nación, on behalf of the Superior Court of Justice. The execution of the surety policy, letter of guarantee or the delivery to the Coercive Executor of the funds consigned will only proceed when there is an express judicial order. (*)
(*) Numeral modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.4 The Judge Specialized in Administrative Litigation or the jurisdictional body acting in its place shall issue a pronouncement on the request for review on the sole merit of the documents presented, without prejudice to what is established in numeral 23.2.
If the Judge Specialized in Administrative Litigation or the jurisdictional body acting in its place, does not issue a resolution at the end of sixty (60) business days from the filing of the claim, the suspension of the coercive enforcement procedure will be maintained, including during the processing of the appeal before the Superior Court referred to in numeral 23.8, provided that the plaintiff of his choice, present in the process a surety policy, irrevocable, unconditional and immediately enforceable surety letter, issued by a local bank of first order in the name of the creditor entity for the amount of the renewable obligation every six (6) months; or make the deposit of the amount demanded before the Banco de la Nación, on behalf of the Specialized Court in Administrative Litigation or the jurisdictional body that takes its place. The execution of the surety policy, letter of guarantee or delivery to the Coercive Executor of the funds consigned will only proceed when there is an express judicial order. "
23.5 For the purposes of resolving the demand for judicial review, it is only up to the Superior Court to decide whether the coercive enforcement procedure has been initiated or processed in accordance with the provisions set forth in this Law.
In the cases in which the presence of evident irregularity or manifest illegality is noticed in the process of the coercive execution procedure, which would have led to the production of verifiable and quantifiable economic damages, the competent Chamber, in addition to ordering the lifting of the precautionary measures , may determine the existence of civil and administrative liability of the Executor and the coercive Assistant and the corresponding amount for compensation. (*)
(*) Numeral modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.5 For purposes of resolving on the demand for judicial review, it is only up to the Judge Specialized in Administrative Litigation or the jurisdictional body acting in its place, to decide whether the coercive enforcement procedure has been initiated or processed in accordance with the provisions set forth in the present Law.
In the cases in which the presence of evident irregularity or manifest illegality is noticed in the process of the coercive execution procedure, which would have led to the production of verifiable and quantifiable economic damages, the Judge Specialized in Administrative Litigation or the judicial body that makes its times, in addition to ordering the lifting of precautionary measures, it may determine the existence of civil and administrative liability of the Executor and the coercive Assistant and the corresponding amount for compensation. "
23.6 In accordance with the provisions of article 392 of the Penal Code, the Executor or Coercive Assistant who, despite having knowledge of the filing of the demand for judicial review, demands the delivery of the goods for the duration of the Suspension of the coercive enforcement procedure, without prejudice to the civil and administrative liability referred to in article 22 of this Law.
23.7 Only with a favorable judicial resolution of the Superior Court of Justice on the legality of the procedure and on the origin of the delivery of goods, securities, funds in checking accounts, deposits, custody and other intervened, collected and / or retained, the Executor coercive or the entity itself, if applicable, may demand the delivery of the same. (*)
(*) Numeral modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.7 Only with a favorable judicial resolution of the Judge Specialized in Administrative Litigation or the jurisdictional body that takes its place, on the legality of the procedure and on the origin of the delivery of goods, securities, funds in current accounts, deposits, custody and others intervened, collected and / or retained, the coercive executor or the entity itself, if applicable, may demand their delivery. "
23.8 For the purposes of the judicial review process, the Administrative Litigation Chamber of the respective Superior Court will be competent, in the place where the coercive execution procedure for review was carried out or the competent one at the domicile of the obligor. In places where there is no Specialized Chamber for Administrative Litigation, the corresponding Civil Chamber is competent and, in the absence of this, the one that takes its place.
The Constitutional and Social Chamber of the Supreme Court of Justice of the Republic constitutes the second instance. In judicial review processes, the cassation appeal referred to in article 32, paragraph 3) of Law No. 27584, Law of the Contentious-Administrative Process, does not apply. (*)
(*) Numeral modified by Article 1 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"23.8 For the purposes of the judicial review process, the Judge Specialized in Contentious Administrative Matters or the jurisdictional body acting in its place, of the respective Superior Court, will be competent in the place where the procedure of coercive execution of the matter was carried out. of review or the competent one in the domicile of the obliged person In places where there is no Specialized Judge in Administrative Litigation, the Specialized Civil Judge is competent and, in the absence of this, the one who acts in his place.
The Administrative Litigation Chamber of the corresponding Superior Court constitutes the second instance. In places where there is no Administrative Litigation Chamber, the corresponding Civil Chamber is competent and, failing this, the one that acts in its place. In judicial review processes, the appeal for cassation referred to in article 32, paragraph 3), of Law 27584, Law that Regulates the Contentious Administrative Process, does not apply.
CONCORDANCES: Law No. 30230, Art. 26 (Suspension of procedures for the execution of infrastructure works)
Article 23-A.- Nullity of acts that contravene or restrict judicial or administrative mandates.
Administrative acts issued by the Coercive Executor that intend to breach, question or contradict the resolutions and / or orders issued by the competent jurisdictional or administrative bodies, which have a direct or indirect impact on the processing of coercive execution procedures, are null and void; including, but not limited to, the resolutions that declare founded the requests that have as their object the suspension of the coercive execution procedure or the effects of the act establishing the obligation that is the subject of said procedure, as well as the judicial and / or administrative orders that expressly order the suspension of the coercive execution procedure.
CHAPTER III
COLLECTION PROCEDURE FOR TAX OBLIGATIONS OF LOCAL GOVERNMENTS
Article 24.- Scope of application.
The rules contained in this chapter shall apply exclusively to the Procedure corresponding to tax obligations in charge of the Local Governments.
Article 25.- Debt enforceable.
25.1. It is considered due debt:
a) The one established by means of a Determination or Fine Resolution, issued by the Entity in accordance with the law, duly notified and not claimed within the term of the law;
b) The established by resolution duly notified and not appealed within the term of law, or by Resolution of the Tax Court;
c) That constituted by the amortization installments of the tax debt subject to deferral and / or fractionation pending payment, when the conditions under which that benefit was granted are breached, provided that the debtor has been notified of the resolution that declares the loss of the fractionation benefit and no challenge has been filed within the term of the law; Y,
d) The one that appears in a Payment Order issued in accordance with the Law and duly notified, in accordance with the provisions of the matter provided in the Single Ordered Text of the Tax Code.
25.2 The Tax Administration of Local Governments will only issue Payment Orders in the cases established in numbers 1 and 3 of Article 78 of the Tax Code. For all other cases, it must issue Determination Resolutions.
25.3. The Executor also has the power to execute the guarantees granted in favor of the Entity by tax debtors and / or third parties, when appropriate, in accordance with the procedure established by the law on the matter.
25.4. The costs and expenses incurred by the Entity in the coercive collection of tax debts will also be required in the same Procedure.
Article 26.- Costs.
26.1. The Executor, under responsibility, will liquidate the costs adhering to the tariff of procedural costs approved in accordance with the provisions of this law. In the event of non-compliance, the Obligor may demand, jointly and severally, from the Executor, Auxiliary or the Entity the return of any excess, including the corresponding interest.
26.2 In no case will costs and expenses be charged when the collection has been improperly initiated in contravention of this law.
Article 27.- Onerous collections.
Based on the cost of the Procedure established by the Entity and due to procedural economy, Procedures will not be initiated regarding those debts that, due to their amount, are onerous, leaving the Entity's right to initiate the Procedure for accumulation of said debts expeditious. when it deems it pertinent.
Article 28.- Precautionary measures.
28.1 The coercive executors may only execute, as a preliminary precautionary measure, the seizure in the form of intervention in information provided for in article 33, literal a), of this Law, having to comply with the requirements established in article 13.
28.2. In no case may the Executors of the Local Governments apply the provisions of articles 56, 57 and 58 of the Tax Code.
28.3. The Executor will lift the preliminary precautionary measure if the Obligor grants a bank guarantee letter or presents any other guarantee that, at the Entity's discretion, is sufficient to guarantee the amount for which the measure was blocked.
Article 29.- Beginning of the Procedure.
The Procedure is initiated by the Executor by notifying the Obligor of the Coercive Execution Resolution, which contains a mandate to comply with the compulsory obligation, within a period of seven (7) working days of notification, under warning of dictating any caution.
Article 30.- Resolution of Coercive Execution.
The Coercive Execution Resolution must contain the same requirements indicated in article 15 of this law.
Article 31.- Suspension of the Procedure.
31.1 In addition to the grounds for suspension provided for in article 16 of this Law, the Executor, under responsibility, must also suspend the Procedure in the following cases:
a) When there are advances or payments on account of the same tax, made in excess, that are not prescribed;
b) When ordered by the Tax Court, in accordance with the provisions of Article 38;
c) When, within the time limits of the law, an appeal for a claim has been submitted; of appeal before the Provincial Municipality of being the case; appeal to the Tax Court or contentious administrative claim that is pending; Y,
d) When it is proven that the payment of the tax obligation in question has been complied with before another Municipality that attributes the same territorial jurisdiction. Once the conflict of jurisdiction has been elucidated, if the Municipality that initiated the coercive collection procedure is the territorially competent one, it will have expedited its right to repeat against the Municipality that made the collection of the tax obligation.
31.2. Exceptionally, in the case of Payment Orders and when there are circumstances that show that the collection may be inadmissible, the Entity must admit the claim without prior payment, provided that it is presented within a period of twenty business days following the notification of the Order. Payment, suspending coercive collection until the debt is coercively enforceable.
31.3 In the cases in which an embargo has been blocked and the suspension of the Procedure is ordered, the lifting of the precautionary measures that have been blocked will proceed.
31.4 In addition to the assumptions provided for in paragraph 31.1, the coercive enforcement procedure will be suspended, under responsibility, when there is a mandate issued by the Judicial Power, in the course of an Amparo or Administrative Litigation process, or when a precautionary measure is issued within or outside the contentious-administrative process.
The suspension of the procedure must occur within the business day following the notification of the court order and / or the precautionary measure, or of the disclosure of the same by the executed or third party in charge of withholding, in the latter case, through writing attaching a copy of the injunction or precautionary measure, and without prejudice to the provisions of article 23 of this Law in relation to the demand for judicial review. "
31.5 The Obligor may request the suspension of the Procedure, provided that it is based on any of the grounds provided for in this article or in article 19 of this Law, presenting the corresponding evidence to the Executor.
31.6 Except for the express judicial mandate, the Executor must expressly pronounce on what is requested, within the following fifteen (15) business days.
Once said period has expired without express pronouncement, the Executor is obliged to suspend the procedure when the Obligor certifies the administrative silence with the charge of receiving his request.
31.7. Once the procedure is suspended, the precautionary measures that have been blocked will be lifted.
Article 32.- Precautionary Measures.
Once the term referred to in Article 29 of this law has expired, the Executor may order any of those provided for in the following article to be locked as precautionary measures. For this purpose:
a) It will notify the precautionary measures, which will take effect from the moment they are received; Y,
b) It will indicate any of the Obligor's assets and / or rights, even when they are in the power of a third party.
Article 33.- Forms of Garnishment.
The forms of attachment that the Executor may block are the following:
a) In the form of intervention in collection, information or administration of assets, having to be understood with the representative of the company or business;
b) In the form of a conservative deposit or sequestration, which will be executed on the assets found in any establishment, including commercial or industrial establishments or offices of independent professionals, for which the Executor may designate the Obligor as the depository of the assets, to a third party or to the Entity.
As an exception, with respect to goods that make up a production or trade unit of a company, seizure can only be made in the form of a deposit with the extraction of goods in isolation, as long as the production or trade process of the Obligor is not affected.
In the case of real estate not registered in Public Registries, the Executor may secure seizure in the form of a deposit with respect to the aforementioned assets, having to appoint the Obligor as depositary;
c) In the form of registration, and must be entered in the Public Registry or other registry, as appropriate. The amount of the registration fees or other rights must be paid by the Entity, with the proceeds of the auction, after obtaining it, or by the Obligor on the occasion of the lifting of the measure, unless it has been improperly blocked;
d) In the form of withholding, in which case it falls on the goods, values and funds in current accounts, deposits, custody and others, as well as on the credit rights of which the Obligor is the holder, which are in the power of third parties .
The measure may be executed by notifying the third party, at the domicile registered as a taxpayer with SUNAT. In both cases, the third party has a maximum period of five (5) business days counted from the notification, to inform the Executor of the retention or the impossibility of it.
In any of the cases indicated in paragraphs a), b) and d), the controller, the depositary or the withholder, as the case may be, will inform the obligor of the existence of the seizure immediately after the retention, deposit or intervention has been made. ; as well as in the cases in which the eventual delivery of the funds withheld and / or collected occurs.
Article 33-A.- Accreditation of the Coercive Executor.
Only the coercive executors duly accredited before the entities of the financial and banking system, the National Police of Peru, the different registry offices of the national territory and before the Bank of the Nation, may order embargoes or require their compliance. Said accreditation must contain, at least, the name of the person, the number of the personal identification document, the personal address, the registration number corresponding to his / her membership, the number and date of the resolution that designates him / her, the signature register. and corresponding stamps, the address of the office where the Entity's coercive Execution Office operates. The accreditation of the coercive executor must be signed by the holder of the corresponding Entity.
Third parties will require, under responsibility, the aforementioned accreditation, being exempted from executing the precautionary measures that are dictated in the event that it is not complied with and / or is not in accordance with the provisions of this Law.
Article 33-B.- Delivery of funds withheld or collected by seizure.
33-B.1 To order the delivery of retained or collected funds, or to carry out the forced execution by auction or any other modality, the executor will notify the obligee in advance with the Resolution that informs him of the beginning of the forced execution . Likewise, the obliged person will be notified by means of Resolution, the conversion of the preventive embargo into definitive or the order to lock one of such nature, specifying the modality of the same.
33-B.2 If the precautionary measure issued is intervention in collection, the third party controller must directly consign the funds collected in an administrative deposit in the name of the Entity in the Banco de la Nación. The funds that are deposited in said account will be retained and may only be delivered after the completion of the Procedure and, if applicable, after the competent Chamber has ruled on the legality of the seizure, resolving the appeal for judicial review. Article 23 of this Law refers to, when it has been filed. (*)
(*) Numeral modified by Article 2 of Law No. 31370 , published on December 8, 2021. The aforementioned law enters into force on April 1, 2022, the text of which is as follows:
"33-B.2. If the precautionary measure dictated is intervention in collection, the third party controller must directly consign the funds collected in an administrative deposit in the name of the Entity in the Banco de la Nación. The funds that are deposited in said account will be retained and may only be delivered after the completion of the Procedure and, if applicable, after the Administrative Litigation Chamber of the corresponding Superior Court or the competent body acting in its place, has ruled on the legality of the However, resolving the appeal for judicial review referred to in article 23 of this Law, when it had been filed ”.
Article 34.- Obligation and responsibility of the third party.
For the purposes of determining the obligation and responsibility of the third party, the provisions of article 18 of this law will be applied, through the issuance of the corresponding Determination Resolution.
Article 35.- Dismissal.
For the purposes of applying the unlocking measure, the provisions of article 19 of this law will be applied.
Article 36.- Third Party Property.
For the process of the third party property, the procedure established in article 20 of this law will be followed, except in relation to the exhaustion of the administrative route, which will only occur with the resolution issued by the Tax Court, before the Appeal filed by the third party within five (5) business days following notification of the resolution issued by the Executor. The parties may contradict said resolution before the Judicial Power.
Article 37.- Appraisal and Auction.
The appraisal and auction of the seized goods will be carried out in accordance with the provisions of article 21 of this law.
Article 38.- Appeal of complaint.
38.1. The Obligor may file a complaint before the Tax Court against the actions or procedures of the Executor or Assistant that directly affect him and violate the provisions of this chapter.
38.2 The Tax Court will resolve within twenty (20) business days after filing the appeal. If the plausibility of the action or procedure denounced and the danger in the delay in the resolution of the complaint, and whenever requested by the obliged person, the Tax Court may order the temporary suspension of the procedure. of coercive execution or of the precautionary measure issued, within a term of three (3) business days and without the need to transfer the request to the executing entity or to the coercive executor.
Article 39.- Responsibility.
The responsibility of the Executor, the Assistant and the Entity will be determined in accordance with the provisions of article 22 of this law.
Article 40.- Judicial review of the Procedure.
The judicial review of the Procedure will be governed in accordance with the provisions of article 23 of this law.
SUPPLEMENTARY AND TRANSITIONAL PROVISIONS
FIRST.- Tariff of procedural costs.
The Ministry of Economy and Finance shall, by means of a supreme decree, approve, within a period of no more than sixty (60) days, the maximum limits of fees for expenses and procedural costs of coercive procedures, which will be mandatory for the National Government and the regional and local governments.
SECOND.- Granting of guarantees.
By means of a Supreme Decree endorsed by the Minister of Economy and Finance within a period of 60 days, the conditions for the granting of guarantees referred to in articles 13 and 28 of this law will be established.
THIRD.- Management charges.
The Public Administration entities are empowered to enter into management commission agreements with the Banco de la Nación, as well as with the tax administration body of the provincial municipality of the jurisdiction where the respective entity is located, in order to entrust them with the processing of coercive enforcement procedures, within the framework of the provisions of Article 71 of Law No. 27444, Law of General Administrative Procedure. (*)
(*) In accordance with Article 2 of Supreme Decree No. 018-2008-JUS , published on December 06, 2008, it is specified that pursuant to the provisions of subsection e) of Article 9 of Legislative Decree No. 1014 - Legislative Decree that establishes measures to promote investment in public services and public infrastructure works, this Supplementary and Transitory Provision is in abeyance.
FOURTH.- Support from police or administrative authorities.
To facilitate coercive collection, the police or administrative authorities will provide immediate support at no cost, under penalty of dismissal.
FIFTH.- Suspension of the coercive procedure.
In the coercive procedure of the Tax Administration bodies other than the Local Governments, the Executor will proceed to suspend the procedure when within a process of protection action there is a firm precautionary measure.
SIX.- Notification
Repealed by Article 3 of Law No. 28165
SEVENTH.- Adaptation to the Law.
The Entities covered by this law, that to date have internal regulations in force for the processing or execution of Coercive Procedures, must adapt the aforementioned regulations to the provisions of this law within a period that will not exceed sixty (60) days, counted from as of the date of publication of this law.
Likewise, they will proceed to call a public merit contest to designate Executors and Assistants. Consequently, at the end of the term prescribed in the preceding paragraph, the designation of those who currently hold said positions will be without effect. The latter are not prevented from entering the contest, as long as they meet the requirements of the law.
Public Administration Entities that have appointed their Executors and Assistants through competition are exempted from the obligation set forth in the preceding paragraph, as long as those appointed meet the requirements prescribed in articles 4 and 6 of this law.
FINAL PROVISIONS
FIRST.- Repealed standards.
Decree Law No. 17355, amending regulations and other provisions that are contrary to this law are repealed.
SECOND.- Supplementary application of other rules
Repealed by Article 3 of Law No. 28165.
THIRD.- Procedures in process.
Repealed by Article 3 of Law No. 28165.
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