Municipal capital gains: new case of unconstitutionality
The basis of the new question of unconstitutionality, which is added to that already analysed in our AddNEWS of March 2017, is centred on discussing whether, in those cases in which the quota to be settled and paid for the IIVTNU is greater than the real increase obtained from the transfer of the property, it contravenes the principles of economic capacity and non-confiscatory nature regulated in the Spanish Constitution.
Thus, as a basis for the present action, the very scope of the principle of economic capacity is established, since that principle does not permit the imposition of taxes in cases where there is no real or potential manifestation of wealth. It follows that there must be a link between the actual taxation resulting from the transfer of the property and the wealth obtained. The problem lies in the fact that the objective calculation system established in the rule is not linked to the real increase obtained from the transfer, which means that there are situations that are inconsistent with the aforementioned principle.
In addition, the principle of non-confiscatory nature is affected, since it affects the taxable wealth when the quota is higher than the real capital gain obtained from the transfer of the property, in such a way that it breaks the proportionality between the income obtained and the tax paid.
On the basis of the above, it is considered that the question of unconstitutionality raised will eventually be successful, and we therefore recommend that the presentation of allegations/writing requesting the rectification of the self-assessment be carried out or, if appropriate, that an appeal for reversal or a claim be filed with the Economic Administrative Court (if applicable) to avoid the finality of the settlement/self-assessment in these cases.
It should be remembered that it is very important to review the time limits for contesting the tax, since they vary depending on whether the tax is managed via liquidation (1 month from notification) or via self-assessment (4 years from the end of the filing period).
Finally, it should be stressed that the appeal should call for the unconstitutionality of the constitutional principles mentioned in this article.
In any case, we remain at your disposal to analyze the specific case and to help you in the preparation and presentation of the writings that are mandatory to recover the tax paid.
