Ex officio review and extraordinary appeal: appealing when the deadline has passed

An administrative act is final when no ordinary appeal is possible against it: the 1 month period for the higher appeal or reconsideration appeal has passed, or the deadlines for the economic-administrative claim in tax matters have expired. Finality does not always close the door: the law maintains 2 extraordinary routes for the most serious cases.

The 1st is the ex officio review for absolute nullity: the Administration itself declares its act null and void, at any time, when 1 of the specific causes of radical nullity occurs. It is regulated in article 106 of Ley 39/2015 (LPACAP) and, for tax acts, in article 217 of the Ley General Tributaria (LGT, General Tax Law).

The 2nd is the extraordinary appeal for review: it attacks final acts when a new important fact appears (an essential document, a ruling declaring a falsehood or a crime) or when there is an obvious factual error in the file itself. It is in article 125 LPACAP and, in taxes, in article 244 LGT.

Both routes are exceptional and of restrictive interpretation: the Council of State repeats that not just any legal defect opens them, only those expressly included in the law (opinion 738/2005, among many). That is why the document must fit the case into the exact legal cause. Managora analyses your decision and tells you frankly if there is a route or not.

It is appropriate when the final act incurs a cause of radical nullity under article 47.1 LPACAP (in taxes, the parallel list of article 217.1 LGT): a) it harms rights and freedoms susceptible to constitutional protection; b) it was issued by a manifestly incompetent body due to the matter or territory; c) it has an impossible content; d) it constitutes a criminal offence or was issued as a consequence of one; e) it was issued completely and absolutely disregarding the legally established procedure or the essential rules for the formation of the will of collegiate bodies; f) it granted powers or rights lacking the essential requirements to acquire them; g) any other cause expressly established by a law.

Its great advantage is that it has no deadline: it can be requested at any time, even if years have passed since the notification. The request is addressed to the same Administration that issued the act; in the case of the AEAT (the Spanish Tax Agency), through its electronic headquarters.

The declaration of nullity requires the favourable opinion of the Council of State (or the equivalent regional consultative body when the act is from an autonomous community). That opinion is enabling: without a favourable opinion there is no nullity.

The entry filter is serious: the Administration can inadmit in a reasoned manner, without requesting an opinion, requests that do not invoke any cause of 47.1, those that manifestly lack foundation and those substantially equal to others already dismissed on the merits. Hence, the document cannot be limited to saying that the act is unfair: it must prove the specific radical defect.

In the general administrative route (art. 125.1 LPACAP) it is possible against final acts for 4 specific reasons: a) factual error resulting from the documents incorporated into the file itself; b) appearance of documents of essential value that, even if they are subsequent, show the error of the decision; c) that documents or testimonies declared false by a final judicial ruling have essentially influenced the decision; d) that the decision was issued as a consequence of prevarication, bribery, violence, fraudulent machination or other punishable conduct, declared by a final judicial ruling.

The deadlines depend on the reason: 4 years from the notification of the act for the factual error, and 3 months (from the knowledge of the documents or from the finality of the ruling) for the other 3. It is filed before the same body that issued the act, which is the one that resolves it.

In tax matters the channel is article 244 LGT and 2 important things change. 1st: there are only 3 reasons (essential subsequent documents or those impossible to provide, documents or testimonies declared false by a final ruling, and an act issued as a consequence of a crime declared by a final ruling), always with a 3 month deadline. 2nd: it is resolved by the Central Economic-Administrative Tribunal (TEAC), although the filing document is presented before the body that issued the act, which forwards it to the TEAC together with the file within 1 month (art. 62 of RD 520/2005, which applies the rules of the 1st economic-administrative instance).

The tax factual error does not go through 244: it is corrected through the rectification of material, arithmetic or factual errors of article 220 LGT, which can be requested as long as the right has not prescribed (generally, 4 years). Choosing the right channel avoids an inadmission.

No. It is the number 1 cause of inadmission. The doctrine of the Council of State and the Supreme Court is constant: the ex officio review cannot be used as a subsidiary route to ordinary appeals to allege the same defects that could have been raised in them. And the extraordinary appeal for review only admits its specific reasons, not a new discussion of the merits.

Therefore, the following are not acceptable: simple disagreement with the settlement or the penalty, defects of motivation or form that only produce voidability, the different assessment of the evidence that was already in the file, or repeating arguments already dismissed in a previous appeal.

However, the following do fit, for example: a penalty notified to a non-existent address without attempting legal notification (defencelessness with constitutional relevance), a settlement issued to someone the law does not consider obligated, a completely omitted procedure, or an official certificate appearing later that proves that the event for which you were penalised did not occur.

The choice of route matters: if there is a new document or a final ruling and it is within the deadline, the extraordinary appeal for review is usually the natural path; if the defect is radical (causes of 47.1 LPACAP or 217.1 LGT), the ex officio review allows acting even if years have passed. Sometimes it is appropriate to raise 1 as the main route and the other in a subsidiary manner.

The document does not have a standardised model, but it does have a structure that the practice of the Council of State and the economic-administrative tribunals makes almost mandatory: identification of the applicant and the final act (file number, date and form of notification); proof of finality; citation of the route and the exact letter invoked (for example, art. 217.1.e) LGT or art. 125.1.b) LPACAP); statement of facts focused on that cause; documentary evidence (the essential document, the final ruling, the file); legal foundations; and specific claim (declaration of nullity or rescission of the act, with refund of undue income and interest when appropriate).

If the act is being executed (embargoes, enforcement), the chosen route matters a lot: in the tax extraordinary appeal for review of art. 244 LGT the execution cannot be suspended in any case, by express prohibition of article 233 LGT. In the other routes (ex officio review and extraordinary appeal of the LPACAP), the request does not suspend the execution of the final act by itself either, but it is possible to request the suspension in a reasoned manner within the procedure.

After submission, the Administration investigates, grants a hearing and, in the ex officio review, obtains the opinion of the Council of State or regional consultative body. In the extraordinary appeal for review of the LPACAP, the Council of State or equivalent regional consultative body also intervenes, unless the body agrees to inadmit it; in the tax one of 244 LGT, the TEAC resolves without that step.

If the decision is dismissive, or if negative silence operates, the contentious-administrative route remains open (2 months from the notification of the express decision).

Yes. Managora analyses your final decision, identifies if there is a specific cause and by which route, drafts the document with the structure required by the practice of the Council of State and the TEAC, and submits it on your behalf: ex officio review before the AEAT (art. 217 LGT), request for ex officio review before any other Administration (art. 106 LPACAP) or extraordinary appeal for review (art. 125 LPACAP). None of these routes has a tasa (official fee); you can see the updated amount of each service in the file of the corresponding procedure.