The constitutional closes the door to claim the surplus value if there is a firm administrative resolution

The Constitutional Court has established that the annulment of the capitalization tax will not be applied with retroactivity if the collection of this lien has

The constitutional closes the door to claim the surplus value if there is a firm administrative resolution

The Constitutional Court has established that the annulment of the capitalization tax will not be applied with retroactivity if the collection of this lien has been resolved "definitely by judgment with strong force force or by firm administrative resolution" before October 26, date on The one that the court communicated its failure.

In the judgment of the Guarantee Tribunal, Paper Ricardo Ricardoz, recalls that on two previous occasions the legacion was urged to modify this tax so that it will not affect the principle of economic capacity collected in article 31 of the Spanish Constitution.

In 2019, the Constitution declared the municipal capitalization unconstitutional when the quota is higher than the patrimonial increase and in 2017, the court declared unconstitutional two articles of the Royal Decree that regulates the tax as long as subjected situations of non-existence of value of the property .

Now, the Court annuls the calculation formula of this tax but establishes that "situations can not be considered to be reviewed in this judgment, those tax obligations accrued by this tax, which on the date of dictating the same-October 26 - have been definitively decided by sentence with judged force or by firm administrative resolution ".

In this sense, the Court clarifies that they will also have the consideration of "consolidated situations" the provisional or definitive liquidations of the surplus value that have not been challenged as of the date of judgment.

The Court estimates that the current regulation of this tax, specifically method of calculating the tax base, leads to a result that remains remarkably from the real values of the real estate market. "The maintenance of the current objective and compulsory system for determining the tax base, for being alien to the reality of the real estate market and the economic crisis and, therefore, outside the economic capacity taxed by the tax and demonstrated by the taxpayer , violates the principle of economic capacity as an imposition criterion, "reads the judgment.

In its resolution, notified this Wednesday, the Constitution admits that the declaration of unconstitutionality and nullity of several articles in the regulation of surplus value "supposes its expulsion from the legal system, leaving a normative vacuum on the determination of the tax base that prevents the liquidation, verification, collection and revision of this local tribute and, therefore, its enforcement ".

In this regard, the Court states that "the legislator must now be (and not this Court) that, in the exercise of his freedom of regulatory configuration, carry out the relevant modifications or adaptations in the legal regime of the tax to adapt it to The requirements of article 31 of the Constitution ".

In the judgment, the Constitution estimates a question of unconstitutionality promoted by the High Court of the High Court of Justice of Andalusia, and declares unconstitutionality and null articles 107.1 second paragraph, 107.2 a) and 107.4 of the reinforced text of the law Regulator of local haciendas.

Unlike cases resolved in previous resolutions - for SSTC judgments 26/2017, 37/2017 and 126/2019-, in this case, the problem that arose is not the adequacy of the tribute at the principle of economic capacity as the foundation of the Imposition, but its adaptation at the beginning of economic capacity as a measure of the tax base.

The sentence collects that the principle that should be contributed to the support of public expenditures "in accordance" with the economic capacity operates with respect to all taxes and is injured if those who have a lower economic capacity support a greater tax burden than those who have An upper capacity.

On the other hand, the TC emphasizes that the method of assessing the tax base according to modules or objective criteria is not necessarily unconstitutional as long as a series of conditions are met that are not respected in the analyzed items, because the regulation they carry out These articles lead to a result that remains remarkably from the real values of the real estate market. Therefore, consider that they are unconstitutional and null.

The resolution has the concurrent vote of President Juan José González Rivas, who considers that the serious problem of the configuration of the tax on the increase of land of urban nature resides in the treatment of urban land in Spain as a unique category, Without serving their singularities, the municipality and the area where it is found.

In his opinion, the method to quantify the variation of the value part of an unacceptable premise: that all the urban land increases of value and does it linearly throughout the territory in which this tax is applied, which makes this equal treatment of the soil Urban is not reasonable. It also happens with the dissociation of soil value and the value of the building. In short, it is the absolute neglecting towards these singularities, which makes the legal, unique and imperative method of delimitation of the tax base is not reasonable and, therefore, is not constitutionally justified the lack of connection between the taxable event and the Taxable base, infringing the principle of economic capacity.

On the other hand, the sentence has the particular vote formulated by the Cándido Conde-Pumpido magistrate to which the Magistrate Maria Luisa Balaguer Callejón adheres. The magistrate proposes an alternative system to the valid objective estimation of the tax base. In his opinion, the most appropriate solution should have been not to declare the nullity of the base regulatory standard, but to give a deadline to the legislator to regulate the alternative system, of retroactive application, which would have allowed to request the return of the tax on the increase of the value of the land of an urban nature in all those cases in which the paid amount was not suitable for the surplus value effectively obtained.

Finally, they consider that the nullity of the questioned norm causes an unnecessary and unbalanced normative void that will benefit those who, even having obtained important capital gains, will not be forced to pay the tax. Nor will they be favored those who paid the tax without submitting claim or self-liquidation rectification.

Updated Date: 03 November 2021, 08:52

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