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The insolvency is declared culpable and you cover the deficit

Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

The culpability report is answered like a statement of claim. Article 450 TRLC gives you ten days to be heard as the insolvent party and five days to appear for the other persons affected, and article 456 allows an order to cover the deficit only where the section was opened because of liquidation and your conduct generated or aggravated the insolvency.

Your company entered insolvency, liquidation was opened and now the culpability report arrives. The insolvency administrator asks for the insolvency to be declared culpable, names you as a person affected and quantifies a deficit of 640,000 euros it wants you to pay out of your own pocket. The basis is twofold: the 2023 accounts were not filed at the Registro Mercantil (the commercial registry) and a supplier who happens to be your brother in law was paid three weeks before the insolvency filing. The report runs to eighty pages and you have ten days.

The case, in five lines

What is brought: Opposing the culpable classification of the insolvency and the order to cover the deficit, dealt with through the insolvency ancillary proceedings.
Before which court: The sección de lo Mercantil of the Tribunal de Instancia (the commercial division of the first instance court) hearing the insolvency case, within the sixth section on culpability. The judgment is appealed to the Audiencia Provincial (the provincial appellate court).
Deadline: Ten days for the insolvent party to be heard from the order under article 450.1 TRLC, and five days for the other persons who may be affected or declared accomplices to appear, plus a further ten days to make submissions once they are given sight of the section.
Who can bring it: Those who may be affected are directors and liquidators, whether de jure or de facto, general managers and anyone who held such a position in the two years before the insolvency was declared. Those who cooperated with intent or gross negligence may also be declared accomplices.
Financial risk: Disqualification from two to fifteen years from managing others' assets and from representing anyone, loss of your own claims against the company, and a personal order to cover the deficit, jointly or severally or not. The statute rules out making you pay the costs of the creditors who appeared to argue for culpability.

What is at stake in the sixth section is not the company, it is your assets

Article 455.2 TRLC lists what a judgment classifying an insolvency as culpable contains, and it is worth reading the whole list before deciding how to respond. It identifies who the persons affected are and who the accomplices are. It imposes on the affected individuals a disqualification from managing others' assets and from representing anyone for a period of two to fifteen years.

It continues with the loss of any right the affected persons or accomplices held as insolvency or estate creditors, an order to return assets or rights improperly obtained from the debtor's estate or received from the insolvency estate, and an order to compensate, jointly and severally or not, the damage caused. All of that before reaching the deficit at all.

The provision itself adds that the length of the disqualification is set by reference to the gravity of the facts, the scale of the harm caused to the insolvency estate and the existence of other culpability judgments in which the same person has already been disqualified. In other words, the length is argued with facts and is not accepted as an automatic figure.

An order to cover the deficit has three filters and they are attacked in order

Article 456.1 TRLC does not allow such an order in every culpable insolvency. It requires the culpability section to have been formed or reopened as a consequence of the opening of the liquidation phase. If your case ended in a composition and the section was not reopened for breach of it, the claim to cover the deficit has no basis, and that objection is raised first, before any other.

The second filter is causal and sits in the same sentence: the order lies to the extent that the conduct of those persons which led to the culpable classification generated or aggravated the insolvency. Being a person affected is not enough. The specific conduct has to be connected to the generation or aggravation of the insolvency, and that connection is arguable.

The third is quantitative. Article 456.2 defines the deficit as the difference between the value of the assets and rights of the insolvency estate according to the administrator's inventory and the sum of the claims recognised in the list of creditors. Two specific documents. If the inventory undervalues assets or the list recognises questionable claims, the deficit figure is wrong.

A presumption admits rebuttal and an article 443 ground does not

This distinction decides many cases and is almost never explained. Article 443 TRLC lists grounds on which the insolvency is classified as culpable in any event: absconding with all or part of the assets, fraudulent removal of assets in the previous two years, simulating a fictitious financial position, serious inaccuracy or false documents, substantial breach of accounting duties or double bookkeeping, and liquidation opened of the court's own motion for breach of the composition attributable to the debtor.

Article 444, by contrast, provides that the insolvency is presumed culpable unless proved otherwise in three cases: breach of the duty to file for insolvency, breach of the duty to cooperate with the judge and the insolvency administrator, and failure to draw up, audit where required, or file the annual accounts in any of the three financial years preceding the declaration.

That is why the complaint about unfiled accounts does not close the case: it falls under article 444.3 and admits rebuttal. The defence shows that the accounts existed, that they reflected the real position, and that the failure to file them neither generated nor aggravated the insolvency, which is what article 456.1 requires before ordering anyone to cover the deficit.

The timetable is short and starts before anything reaches you

The sixth section is formed in the same order that ends the common phase, under article 446 TRLC. Before you have read anything, article 447 has already allowed any creditor or party on the record to email the insolvency administrator whatever they consider relevant to support a culpable classification, with the documents they see fit. Those submissions are attached to the report as an annex.

Article 448 gives the insolvency administrator fifteen days from the filing of the inventory and the provisional list of creditors to issue its report, which takes the form of a statement of claim if it seeks a culpable classification and must identify the persons affected and the accomplices, justify the ground and quantify the damage caused. Article 449 also allows reports from creditors representing at least five per cent of the liabilities or holding more than one million euros.

Then comes article 450: the judge orders the insolvent party to be heard within ten days and summons the other persons who might be affected or declared accomplices to appear within five days. Those who appear are given sight of the section's contents so as to make submissions within the following ten days. Anyone who does not appear is declared in default and the proceedings continue without further summons.

Your document is not a plea for mercy, it is a defence to a claim

Article 450.5 puts it without leeway: save in cases of admission, the submissions of the debtor, of the other persons affected and of the accomplices must take the form of a defence to a claim. Numbered facts, express denial of those not admitted, legal grounds and an offer of evidence. A narrative document of personal exculpation is, in practice, a partial admission.

Article 451 completes the design: if the insolvent party or any of those appearing opposes, they must do so in the form laid down for a defence, the matter proceeds as an insolvency ancillary claim and, where there are several oppositions, they are heard together in the same ancillary proceedings. If no opposition is filed, the judge gives judgment within five days.

There is an exit almost nobody explores. Article 450.4 allows the judge to vacate the hearing date where the evidence offered in the reports and submissions is purely documentary. And article 450.6 requires the matter to be closed outright where the insolvency administrator seeks a fortuitous classification and the entitled creditors file no report, with no appeal against that order.

Costs in the culpability section do not work as in an ordinary lawsuit

Article 455.3 TRLC introduces two special rules worth knowing before deciding whether to fight. The first protects the insolvency administrator: a judgment dismissing the culpability claim it brought will not order it to pay the costs, unless there was recklessness. Winning therefore does not mean recovering costs from the party that accused you.

The second protects the loser: a judgment upholding the culpability claim will not order the persons affected or the accomplices to pay the costs incurred by those who appeared in the sixth section to argue for that classification. Losing therefore does not drag with it the costs of every creditor who joined the accusation.

The real financial exposure therefore lies not in costs but in the substance: two to fifteen years of disqualification, the loss of your own claims, the return of what you received and the deficit figure. Knowing that changes the calculation, because the incentive to admit the claim so as to avoid costs the statute already excludes is a false incentive.

How we run the case, step by step

1
Reading the culpability report and its annexes
We separate what the report alleges under article 443 TRLC, which admits no rebuttal, from what it alleges under article 444, which does. We review the creditors' submissions attached as an annex, since they often carry the facts the report treats as proven.
2
Appearing in time and obtaining sight of the section
The persons summoned appear within the five days so as not to be declared in default, and the ten days to make submissions run from the moment sight of the section is given. The insolvent party has its own ten days of hearing from the court order.
3
Auditing the inventory and the list of creditors
The deficit is the difference between the value of the assets in the administrator's inventory and the claims recognised in the list. We review undervaluations, omitted assets and weakly supported recognised claims, because every correction reduces the figure claimed.
4
Filing an opposition drafted as a defence
We deny the facts not admitted, separate the absolute grounds from the rebuttable presumptions, attack the causal link between the conduct alleged and the generation or aggravation of the insolvency, and offer evidence. Where there are several oppositions, they are heard together.
5
Hearing, judgment and, where needed, appeal
The hearing is listed within two months of the court order, unless the evidence is purely documentary and the judge vacates it. The culpability judgment may be appealed, and the appeal is lodged within twenty days of service.

The evidence that decides the case

The annual accounts for the last three financial years with proof that they were drawn up, audited where required and filed at the commercial registry.
The accounting books and the supporting records for the disputed entries, to show there was no substantial breach, double bookkeeping or material irregularity.
The insolvency administrator's inventory and the list of recognised claims, the two documents with which the statute calculates the deficit.
The board minutes and internal reports pinpointing the date the insolvency became apparent, against the date the insolvency filing was made.
Full documentation for every act of disposal in the two years before the declaration, with its cause, its consideration and its business justification.
The correspondence with the insolvency administrator and the requests complied with, evidencing performance of the duties of cooperation and information.

What closes the door

Failing to appear within the five days of the summons. Anyone who does not appear is declared in default and the proceedings continue without further summons, with liability decided in their absence.
Answering the report with a narrative document. The statute requires the form of a defence to a claim, and facts not expressly denied are taken as accepted.
Treating every allegation alike. The article 443 grounds classify the insolvency as culpable in any event, whereas those in article 444 are presumptions that admit rebuttal.
Accepting the deficit figure without reviewing the inventory and the list of creditors. It is a subtraction between two specific documents, and every error in either of them increases what is claimed from you.
Admitting the claim to save costs the statute already excludes. A judgment upholding culpability does not order the persons affected to pay the costs of the creditors who appeared to argue for it.

The law that applies

Art. 456 TRLC. Allows directors, de jure or de facto liquidators and general managers declared persons affected to be ordered to cover the deficit wholly or in part, only where the section was formed or reopened because liquidation was opened and to the extent their conduct generated or aggravated the insolvency. It defines the deficit as the gap between the inventory assets and the recognised claims, and requires each defendant's share to be individualised. BOE-A-2020-4859
Art. 455 TRLC. Sets the content of the culpability judgment: persons affected and accomplices, disqualification from two to fifteen years from managing others' assets and representing anyone, loss of rights as an insolvency or estate creditor, return of what was improperly obtained and compensation for damage. It includes special costs rules protecting both the insolvency administrator and the persons affected. BOE-A-2020-4859
Art. 443 TRLC. Lists six grounds on which the insolvency is culpable in any event: absconding with assets, fraudulent removal of assets in the previous two years, simulating a fictitious financial position, serious inaccuracy or false documents, substantial breach of accounting duties or double bookkeeping, and liquidation opened of the court's own motion for breach of the composition attributable to the debtor. BOE-A-2020-4859
Art. 444 TRLC. Establishes three rebuttable presumptions of culpability: breach of the duty to file for insolvency, breach of the duty to cooperate with the judge and the insolvency administrator, and failure to draw up, audit where required or file the annual accounts in any of the three financial years preceding the declaration. BOE-A-2020-4859
Art. 450 TRLC. Requires the insolvent party to be heard within ten days and the other persons who may be affected or declared accomplices to be summoned within five, with sight of the section and ten days to make submissions, lists the hearing within the next two months, allows it to be vacated where the evidence is purely documentary, and orders closure with no appeal where the administrator seeks a fortuitous classification and no entitled creditor reports. BOE-A-2020-4859
Art. 451 TRLC. Requires the opposition of the insolvent party or of those appearing to be formulated as a defence to a claim, refers the subsequent handling to the rules on insolvency ancillary proceedings, orders all oppositions to be joined in a single ancillary claim, and requires judgment within five days where none is filed. BOE-A-2020-4859

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

Can I be made to pay the deficit simply because I was the director

No. Article 456.1 TRLC requires three things at once: that the culpability section was formed or reopened as a consequence of the opening of liquidation, that you were declared a person affected, and that the order be made to the extent that your conduct, the conduct that led to the culpable classification, generated or aggravated the insolvency. Holding the office alone is not enough.

We failed to file one year's accounts, does that already convict me

Not automatically. That fact falls under article 444.3, which is a presumption of culpability unless proved otherwise, and not under article 443, which classifies the insolvency as culpable in any event. You can show the accounts existed and were truthful, and above all that the omission neither generated nor aggravated the insolvency, a requirement article 456.1 imposes before ordering anyone to cover the deficit.

How is the deficit figure claimed against me calculated

Article 456.2 defines it: a deficit exists where the value of the assets and rights of the insolvency estate, according to the administrator's inventory, is lower than the sum of the claims recognised in the list of creditors. Those are two specific documents and both are reviewed. Moreover, where there are several defendants, the judgment must individualise the amount payable by each.

How many days do I really have to react

It depends on your position. As the insolvent party, article 450.1 TRLC gives you ten days to be heard from the court order. As a person who may be affected or declared an accomplice, you have five days to appear and, once given sight of the section's contents, a further ten to make submissions. Anyone who does not appear is declared in default and the proceedings go on without further summons.

If I lose, do I also pay the costs of every creditor

No. Article 455.3 TRLC provides that a judgment upholding culpability will not order the persons affected or the accomplices to pay the costs of those who appeared in the sixth section to argue for that classification. The same rule protects the insolvency administrator if its claim is dismissed, unless there was recklessness.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.