New cases of return of the municipal capital gains

The Supreme Court extended the scope of the declaration of unconstitutionality to the tax on the increase in value of urban land, hereinafter IIVTNU, for those cases in which the tax payable was higher than the profit obtained from the sale.

The Plenary Session of the Constitutional Court unanimously considered the scope of the declaration of unconstitutionality according to the ruling of 31 October 2019, for those cases in which the tax payable and payable for IIVTNU is greater than the actual increase obtained from the transfer of the property.

As mentioned in the AddNEWS of April, the Constitutional Court admitted the aforementioned case and, finally, the scope of the unconstitutionality of the tax has been extended, exempting from the payment of the tax, in addition to the cases where there has been no benefit, those cases where the amount to be paid for IIVTNU is higher than the benefit obtained from the transfer of the property.

At the same time, the same Constitutional Court published a new ruling on September 30, 2009, protecting the taxpayer and allowing him to obtain a refund of the capital gain even though the taxable event had occurred before the annulment of the IIVTNU.

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 a settlement (1 month from notification) or via a self-assessment (4 years from the end of the filing period) and, furthermore, it is possible that the limitation period has been interrupted and, in this case, according to the last judgment mentioned, even if the taxable event occurred before the IIVTNU was annulled, a refund could be claimed.

Therefore, in cases where the right to request a refund was not prescribed, it is advisable to review whether the payment of the IIVTNU was indeed due, since, if not, the refund of the amount paid in excess could be requested.