Since the Constitutional Court (TC) declared unconstitutional and null and void the system for calculating the Tax on the Increase in the Value of Urban Land (Plusvalía) on 26 October, the trickle of claims and refunds for amounts already paid has been incessant. This is the case of a taxpayer from Sitges (Barcelona), to whom the Barcelona Tax Authority (ORGT) will return the 78,803 euros, plus 17,300 euros in interest, that she paid for this tax in 2016, corresponding to the sale of a house, and whose claim was initiated before the ruling of the TC.
Declaration of the constitutional court
With regard to the case, capital gains tax is a municipal tax that is levied in all cases of transfer of a property to another person, whether it is a sale, inheritance or donation.
In this regard, it should be noted that in previous rulings (Rulings 59/2017 of 11 May and 126/2019 of 31 October), the TC urged the legislator to reform this tax, considering that the amount to be paid should not tax situations of loss of wealth or establish fees above the increase in wealth produced.
Now, this judgment involves a further step, i.e., the repeal of the tax by declaring the articles establishing the system of calculation to be invalid, which, according to the Constitutional Court, would violate the principle of economic capacity set out in the Article 31(1) EC.
Consequences of the judgment
Consequently, following that ruling, they must now the capital gains paid are to be refundednot only in the transmissions in which the flat, premises or garage had been made for a lower value than when purchasedThe Commission has also been able to identify not only those paid to the municipalities for a sale, inheritance or donation in which it had obtained a gain as well. However, the office warns, it is necessary that at the date of publication of this resolution in the BOE they had already been challenged and were pending resolution.
In this regard, the Administrative Court No. 2 of Madrid declared, in its ruling of 23 February 2022, that the effects of the TC ruling, handed down on 26 October 2021, will be applicable from the date on which it was to be applied, and that the effects of the TC ruling, handed down on 26 October 2021, will be applicable from the date on which it was to be applied from the date on which it was to be applied. with immediate effect from its publication in the B0E, i.e. from 25 November 2021. and not from the date on which it was issued, in accordance with the provisions of the article 38.1 of the Organic Law of the Constitutional Courtwhich provides that "Rulings handed down in unconstitutionality proceedings shall have the force of res judicata, shall be binding on all public authorities and shall produce general effects from the date of their publication in the Official State Gazette".
Likewise, apart from the fact that the complaint, in this case, was presented prior to the Constitutional Court's ruling, the Catalan body warns that there was no firm decision This was a crucial point noted by the TC, since if there had been a final decision, it could not have been reviewed.
Therefore, the ORGT decided to annul the self-assessment made by the taxpayer and proceeded to refund the 78,803 euros, plus 17,300 euros in interest for late payment.
Source: Legal news
