The Supreme Court establishes that it can only be considered obtaining income that would give rise to losing the right to the benefit, the capital gains where applicable, and not the mere income of the amount of the plan, the same as if it were the sale of a property. .
The 4th Chamber of the Supreme Court, in a ruling dated February 3, analyzes the termination of unemployment benefits and improper declaration of earnings from the date of rescue of a pension plan.
The regulations applicable to the matter are controversial since the infraction attributed by the SEPE to the beneficiary of the subsidy is classified in article 25.3 of the Consolidated Text of the Law on Infractions and Sanctions in the Social Order (LISOS):
This regulation establishes that serious infractions are “failure to communicate, except for justified cause, the reductions in benefits... when the requirements for the right to its perception are no longer met when for any of these reasons the benefit has been improperly received, provided that the conduct is not classified as a minor infraction in article 24.4 b) of this law.
In these cases, the sanction consists, according to what is established in article 47 of the LISOS, in the “loss of the benefit or pension for a period of three months, except for those of numbers 2 and 3, respectively in the benefits for temporary disability and in unemployment benefits and subsidies, as well as in the benefit for cessation of activity of self-employed workers in which the sanction will be termination of the benefit.
With the rescue, there is no increase in assets, unless there are capital gains
The TS understands that it is necessary to examine whether the pension plan rescue carried out can be considered as income or computable income in its entirety, in order to determine the subsistence of the requirement of lack of income to continue receiving unemployment benefits. In reality, with the rescue of the pension plan, nothing is entered into the assets that were not already there, one asset element (the pension plan) is replaced by another (the money obtained by the rescue of the aforementioned plan), being the only relevant, for the purposes now examined, the profit, capital gains or performance that the aforementioned plan may have provided.
This has been understood with respect to the sale of a property, whereby one asset element (the property) has been replaced by another (the money given as price); The money received must be computed as soon as it has been invested in any income-generating operation in the strict sense; Therefore, its transformation into money, through a sale, cannot have any significant consequences, from the point of view of unemployment benefit, since the beneficiary is limited to being the owner of a different asset or thing: before a property, now an amount of money (TS 3-27-07).
Therefore, it is concluded that the only income or income that can be computed are the returns, capital gains or benefits that the pension plan may have generated during the time in which it subsisted, without the total amount of the pension being able to be imputed as income or income. rescue of the same.
Since it is not clear whether such benefits, capital gains or income have existed or, where applicable, the amount thereof, the infraction that the SEPE alleges has not been committed, namely, not communicating the receipt of the income and receiving unemployment benefits. improperly. Therefore, since the plaintiff's conduct cannot be subsumed into the type described, she has not committed the infraction contemplated in said provision and, therefore, it is not appropriate to impose the established sanction.
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