The municipal capital surtax, declared unconstitutional when sold in losses.

Professional, serious and didactic article published by Idealista and whose author is Paloma Martínez Almeida.

The TC has declared unconstitutional the statutory regulation governing the tax on surplus value in Guipúzcoa, a law that is equal to the state, so that this ruling will force the national legislation. Thus, the Constitutional Court considers that when there is a fall in the value of the land, no tax or taxpayer obligation to pay this tax is generated for the transmission of a property. It is one of the most important sources of revenue for municipalities.

Municipal capital gains are a direct tax imposed on the alleged increase in value of land of an urban nature, as a consequence of its transfer (sale, inheritance, donation, exchange), as well as by the constitution or transfer of real rights of enjoyment, as the usufruct. It is also one of the most important sources of revenue for municipalities.

As G & G Abogados’ lawyer Carmen Giménez points out, the formula for calculating the tax is based on fictitious and non-real amounts, since it is done on land cadastral values ​​that have either been stagnant or have not stopped increasing, despite the real fall in both the price of accommodation and the price of land.

Specifically, the Local Finance Regulatory Law establishes that the surplus value is calculated based on the increase in the value of the land in the years following its transmission and not on the value it has had since its acquisition, according to José María Salcedo , Partner of Attico Jurídico. However, this method of calculation is also being questioned in the Spanish courts as published idealist / news a few days ago.

Numerous judgments have been handed down in different courts and tribunals of the different Autonomous Communities which determine that if a real and economic increase in the price of a property has not been granted in the transfer of a property, The budget established by the Local Finance Act to accrue said tax.

The Court of Litigation of San Sebastian is one of those who has challenged before the Constitutional Court the system of calculation of this tax: if there has not been a real increase in the value of the land, neither the tax nor the obligation of the taxpayer should be generated to pay it, since it must first the economic reality against the “calculation method”. To this end, they argue that the principles of equity, justice and economic capacity that are contemplated in the Spanish Constitution must prevail.

This circumstance, in transactions in which there is a loss of property, would violate Article 31 of the Constitution: “All will contribute to the maintenance of public expenditures according to their economic capacity through a fair tax system inspired by the principles of equality and progressivity that, in no case, will have a confiscatory effect. ”

In fact, it has been the San Sebastian Contentious-Administrative Court that has raised the question of unconstitutionality on the charter that regulates the tax on surplus value of Guipúzcoa. This regulation is equal to articles 104 and 107 of the Local Law of “Hacienda, with which the ruling of the Constitutional will force to modify the state and Basque regulations.

In addition, according to José María Salcedo, Legal Attic, “the fact that the legislation does not contemplate the possibility that the transmission produces a loss or disability implies the imposition of a fictitious increase that, being calculated by default by the method in the norm, can not also be object of a contradictory expert valuation for the determination of the tax base, nor admits evidence to the contrary”. That is, municipalities do not accept that the taxpayer provides evidence against the valuation made by the public administration.

This, according to the experts, constitutes a clear limitation of the right of defense provided for in article 24 of the Constitution, which stipulates that all persons “have the right to obtain effective protection of judges and tribunals in the exercise of their rights and legitimate interests, without, in any case, being able to produce defenselessness” and that also they have right “to use the means of proof pertinent for their defense”.

“The immediate effect is that the municipalities will no longer be able to ignore the resources of the taxpayers in which they indicate that they have sold in losses. The Constitutional one, although referring to the normative foral, has just stated that it is unconstitutional to apply the formula as a roller, without taking into account situations in which it has been sold in losses, and without allowing the taxpayer to prove it”, said lawyer Salcedo.

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