The TC will limit capital gains claims to avoid discrimination

Last Tuesday, the Constitutional Court declared the Tax on the Increase in the Value of Urban Lands, known as the municipal capital gains tax, considering that the calculation method is unconstitutional, although the draft of the sentence indicates that only taxpayers who already had an open appeal or that they had requested the rectification and return of undue income before knowing the ruling of the sentence -October 26- in order to avoid discrimination. In other words, all those taxpayers whose settlements or self-assessments have become final cannot be appealed.

According to the draft of the sentence, to which La Información has had access, the Plenary of the court of guarantees considers that the maintenance of the current “objective and mandatory system for determining the tax base” violates the principle of economic capacity as a criterion for taxation, protected by article 31.1 of the Spanish Constitution, because it is “oblivious to the reality of the real estate market and the economic crisis “. For this reason, the precepts have been declared unconstitutional and null. that are used to calculate said tax, according to which the value of urban land always increases, which has disrupted the operation of the tribute that contributed to the accounts of the 8,000 municipalities in Spain.

The president of the FEMP, Abel Caballero, with María Jesús Montero

Faced with a possible avalanche of claims, the TC expressly limit in your judgment which taxpayers can claim the tax paid once it has been declared unconstitutional. Thus, according to the draft of the sentence, whose presentation is from magistrate Ricardo Enríquez, “Cannot be considered situations that can be reviewed based on this judgment those tax obligations accrued by this tax that, at the date of issuance of the same, have been decided definitively by means of a judgment with force of res judicata or by means of a final administrative resolution “.

Moreover, he adds that “to these exclusive effects, they will have also the consideration of consolidated situations the provisional or definitive settlements that have not been contested at the date of issuing this judgment and the self-assessments whose rectification has not been requested on that date. “Sources of the highest interpreter of the Constitution consulted by this newspaper make special emphasis on the fact that this text is still not final -will be known in the next few days- so it can still undergo modifications. It should be remembered that the sentence has the concurrent private vote of the president of the TC, Juan Jose Gonzalez Rivas, and the dissenting votes of the magistrate Candido Conde-Pumpido and the magistrate Maria Luisa Balaguer.

In a statement issued this Tuesday, the Court advanced the ruling – which has two individual votes – in which the “intangibility of the firm situations existing before the date of the approval of the sentence“However, as the details of the resolution are not yet known and whether it would have retroactive effects, different experts pointed out that the operative part reflected a scenario that would allow thousands of taxpayers, who would have paid said tribute through self-assessment, claim the return of the same, since this does not become firm until four years have elapsed. A different matter is the taxes paid by way of liquidation, where the consistories are in charge of collecting it directly, since become firm in just one month.

“It is not the expected news”

Now, the first news of the “scope” that the recent Constitutional ruling will have has established as a jug of cold water in many taxpayers. “If this draft ends up being the final sentence, the news is not as expected, because surprisingly, the Constitutional Court deprives all taxpayers of the right to claim have not already started a claim for this tribute, although they are still on time to do so, “says Carlos Sierra, an expert lawyer in tax law at

It is the third ruling issued by the Constitutional Court on capital gains tax. In 2017, it declared unconstitutional to subject to tax situations of non-existence of increases in value; and in 2019 it did the same “in those cases in which the installment to pay is higher than the increase in equity.” The last revision, and which has qualified its two previous sentences, took place after the Contentious-Administrative Chamber of the Superior Court of Justice of Andalusiato -house in Malaga- raise a question of unconstitutionality about various sections of the Article 107 of the Consolidated Text of the Law Regulating Local Finance.

In the hands of the courts

According to the draft, the TC warns that the nullity of the articles relating to the calculation of the municipal capital gains tax “supposes their expulsion from the legal system, leaving a regulatory vacuum on the determination of the tax base that prevents the settlement, verification, collection and review of this local tribute and therefore, its enforceability“. Therefore, it returns the ball to the legislator so that,” in the exercise of his freedom of normative configuration “, he makes the”relevant modifications or adaptations“in the legal regime of the tax to adapt it to the requirements of article 31.1 Spanish Constitution.

There is the circumstance of the Ministry of Finance I was already working with the Spanish Federation of Municipalities and Provinces (FEMP) in a legislative reform to adapt the tax to the judicial decisions known for four years, which already questioned key aspects of the tax, and rsolve the litigation problem that might become apparent once those changes were applied.

Source: LA INFORMACIÓN – Lo último by

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