The Constitutional Court will once again decide on municipal capital gains, although now it will do so in cases of certain gains. If the tax, which taxes the increase in the value of urban nature lands when there were losses, will now dictate whether the tax is «confiscatory»In certain cases where there is even profit. The Plenary Session of the Constitutional Court has admitted for processing a question of unconstitutionality raised by the Contentious-Administrative Court number 32 of Madrid. As the car picks up with the question, to which ABC has had access, the TC will decide if the tax is "confiscatory" in certain cases of profits, something unprecedented until now.
«It is proposed that, if there is an increase in value, the fee to pay is higher than the real increase experienced by the sale of the land, so the taxpayer sees how this (the increase) is "expropriated"de facto, what could have confiscatory character», The Court resolves. It would violate Article 31 of the Spanish Constitution, that gathers the principles of tributary justice and establishes that the tributary system "in no case, will have confiscatory scope".
Knock down the tax
This question took time in the air, since the tax in certain cases sets the fee to be paid that practically equals and, in certain cases, exceeds the profit obtained. This led the Superior Court of Justice of the Valencian Community to point out in a judgment that the tax incurred in theconfiscation»Of economic capacity.
The Court also raises the violation of the principles of economic capacity -Because the tax does not depend on the profit obtained and taxes an increase of 1% than of 50% - and of progressiveness. As for the confiscatoriety, it raises not only that if it is greater than the benefit, but, citing German jurisprudence, that the tax could be confiscatory even if it exceeds 50% of the profit.
The payment of the tribute exceeds the profit
Specifically, consult on the case of a taxpayer who had to pay the City Council of Majadahonda 3,560 euros of goodwill for a benefit of 4,343 euros, that is, 83.89% of the total. If you also subtract the transmission costs (cancellation of mortgage, registration, energy certificate ...), the difference between purchase and transmission would be 3,473.9 euros. Then the tax charged would have been directly higher than the profit obtained.
«An important question is that the Constitutional clarify well when a tax is confiscatory (percentage on the profit obtained), and if in this computation should be taken into account all taxes levied on the operation, "says the partner of the firm Legal Attic, José María Salcedo.
Since the Constitutional Court knocked down the tax when it taxed losses, the respective legislation has not changed. Hacienda and the Spanish Federation of Municipalities and Provinces (FEMP) agreed on a reform so that cases where there would be no appreciation of the land would not be taxed, taking reference to the values of the deeds for this purpose. But the new norm has not been approved for more than a year and meanwhile the Justice moves tab against the policy.