Supreme Court: raising the contribution base before maternity leave was no fraud

The Labour Chamber of Spain's Supreme Court has sided with self-employed mothers who raised their contribution base shortly before taking maternity leave and were later sanctioned by the National Social Security Institute (INSS) for alleged fraud. In a judgment reported by elEconomista, the court holds that, until the real-income contribution system entered into force in 2023, choosing a higher base was a lawful exercise of a regulatory option, not an abuse to be sanctioned.

A regulatory option, not an abuse

Under the system in force before 2023, self-employed workers could choose their contribution base within a wide band, and changes took effect prospectively. The INSS had been reviewing cases in which a base increase shortly before leave substantially raised the maternity benefit, treating them as fraud on the law and demanding repayment plus sanctions. The chamber's doctrine, in a ruling whose rapporteur was Judge López Parada, closes that route: where the rule grants a choice, its exercise cannot be requalified as fraud merely because the timing was advantageous.

The practical consequence is the annulment of sanctions and claw-back claims in the affected cases, and a clear criterion for the many similar disputes still working their way through the courts. Some of those claims will now hinge on limitation periods, an issue practitioners should check case by case.

What changes after 2023

The doctrine is time-bounded. Since January 2023 the self-employed contribute on real income, so the old margin to optimise the base before leave no longer exists in the same form. The judgment therefore resolves a legacy stock of litigation rather than opening a planning opportunity, a nuance worth stressing when advising clients who read the headline. For the day-to-day of the practice, it is also a reminder to audit benefit files before the administration does: we cover these questions in our self-employed practice section, and the hiring angle for firms handling the resulting caseload in jobs.

The case analysed by the chamber followed the usual pattern: the worker, registered as self-employed, raised her contribution base months before the expected birth, with the effect of increasing the regulatory base of her maternity benefit. The INSS detected the increase in a review, demanded repayment of the difference and imposed a sanction, considering that the change pursued an improper advantage. The lower courts had backed the administration, and the Supreme Court now corrects them: the rule in force allowed the choice, it required no justification and its effects were regulated by the legislator itself.

Since 2023, self-employed workers contribute under a system of brackets based on real income, with regularisations during the year, so the planning margin that generated this litigation has largely disappeared. What remains is the stock of open files, sanctions and repayments derived from the pre-reform period, which should now be reviewed in light of this doctrine. Specialist associations had denounced for years that the INSS's review practice punished the use of a legal option, and the judgment gives them the reason they were seeking.

Advisors recommend that any self-employed mother affected by one of these reviews gather the full administrative file, check the state of the proceeding and assess challenging it on the basis of this doctrine, without forgetting the calculation of interest that a favourable outcome would bring.

Source: elEconomista. This piece is informative and does not constitute legal advice.