It's over. The Constitutional Court deals a new, and apparently definitive, blow to the well-known Municipal Capital Gains tax, which taxes the increase in value experienced by urban land from the time it is acquired until it is transferred:
- Until now, justice had limited the collection when there were losses in the sale.
- The decision does not contemplate retroactive effect on past settlements.
The Constitutional Court declares the Municipal Capital Gains tax unconstitutional
This new ruling declares articles 107.1, second paragraph, 107.a) and 2 of the Consolidated Text of the Law Regulating Local Treasury TRLHL, null and unconstitutional, which establishes an objective method to determine the tax base of the property tax. Municipal Capital Gains which always considers that there has been an increase in the value of the land due to the simple fact of having owned it during the taxation period, regardless of whether such an increase has finally existed and the actual amount thereof.
Summarizing, the tax does not adjust to an increase in real value. And therefore, this tax system is contrary to the Spanish Constitution because it is disproportionate and confiscatory.
How does this new ruling of the Constitutional Court affect Municipal Capital Gains claims?
Until now, each court interpreted the latest rulings of the Constitutional Court and the Supreme Court in a different way. And with this last sentence opens the way to claim what was paid as Municipal Capital Gains, regardless of having obtained a capital loss or gain with the transfer of the property, since when the calculation method is declared null, it does not exist.
Although we are waiting to know the content of the ruling to be able to assess its effect on the self-assessments and capital gains settlements carried out, in our law firm in Murcia capital We think that everything indicates that the self-assessments of the last 4 years and the liquidations of the last month may be reviewed, as well as all the procedures that were being processed administratively and/or judicially.
Finally, and based on the information note of the Constitutional Court, everything indicates that This declaration of unconstitutionality will not be retroactive. (files on which a final judgment has been issued). However, it will be necessary to look at the literal nature of the sentence to know if an extraordinary appeal for review or financial liability of the Administration can be filed against firm procedures.
