September 25, 2020

The coronavirus crisis opens the debate on the inheritance tax



The coronavirus crisis and its economic and social impact on Spanish families have reopened the debate on the inheritance tax, possibly one of the rates that has caused the most controversy at the political level and that some formations are now advocating to suppress in the face of the current health emergency .

Experts consulted by Efe insist on the difficulties involved in such a proposal, among other reasons, because the competent authority to adopt any decision would be each autonomous community, not the State, and recall that many of them have already suspended the payment of the tax during the state alarm.

“Whether it is a month or 40 days, the truth is that it is a term that the family member wins”, assures the partner of Lean Abogados Santiago Viciano, who explains that some heirs face other problems related to the pandemic, well because they have suffered a temporary employment regulation file (ERTE) or for having had to cease their activity of being self-employed.

Just last week the PP leader, Pablo Casado, went further and asked that the tax payment be forgiven in the case of those who died of the coronavirus in order to relax their tax burden.

“It is a political proposal, just as there have been tax benefits for those affected, for example, from the rapeseed,” says Viciano, who sees in this petition “a way to help.”

But, in practice, its application could suppose a “comparative grievance that would violate the principle of equality contained in the Constitution,” explains the expert lawyer in family law of Sanahuja Miranda, Ignasi Vives, for whom “there would be no point in suppressing it. some yes and others no “.

“Another thing would be different if measures were adopted to make the payment of the tax more flexible to all those obligated,” that is, to all the people who, regardless of the cause of death of their close friend, received an inheritance during these days, he adds. .

THE TESTAMENT FOR EPIDEMIC AND BUSINESS SUCCESSION

At the moment, what is certain is that the exceptional nature of this crisis has activated for the first time article 701 of the Civil Code, which contemplates the possibility that, in the event of an epidemic, a will can be made without the presence of Notary: three witnesses over 16 years of age are sufficient to understand the language and may not be the heirs, or their spouses or relatives.

“The will expires two months after the end of the pandemic, so, if desired, a new one must be made later,” says Vives, who details that in the event that the person concerned finally dies, “there is three months to go to the notary, raise it to public deed and record it according to the legislation. “

If the loss can have effects at the family business level, “it is vital to go ahead and have the succession of the partners already planned,” argue from Balms Abogados, which is why they recommend “developing a family protocol, since survival is at stake company itself. “

PROCESSING AVALANCHE

According to data provided by the Ministry of Health, the number of deaths from coronavirus exceeds 19,000; of them, more than 6,800 only in Madrid, a community in which, sources acknowledge, the “avalanche” of inheritances is already being felt.

And it is that, in this crisis, “people are hungry for the distribution of the will”, says Viciano, who reiterates that the situation of economic necessity in which many people are seen forces them to claim their part as soon as possible.

Far from being a momentary work overload, it foresees that the increase in procedures as a consequence of the coronavirus will bring with it a future “collapse” in the courts in charge of resolving conflicting inheritances, which normally represent “25 or 30% of the total” .

This will translate into a further delay in the distribution of assets through the courts, which already take “between three or four years on average”, according to the partner at Lean Abogados, who is proposing as a solution the appointment of a “dative executor”.

This figure, practically unknown since its appearance in 2015, may be invoked by the heirs – as long as there is a consensus between them of more than 50% – before a notary, before whom they will appoint a lawyer with more than five years of experience who will be appointed by lottery and will be empowered to distribute the will.

Regardless of the formula chosen and beyond the will for an epidemic, the coronavirus crisis presents itself as a challenge for notaries “under minimums” that, although they are closed to the public, are still operating for the signing of urgent and non-extendable deeds. .

Unlike other procedures, which can be streamlined through the internet, experts emphasize that the “online notary” service is only available to offer advice, so if you want to formalize the will before a notary “we will have to go to ratify it when the alarm state is lifted, “concludes Vives.

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