Possible recovery of Tax on Inheritance and donations in the case of non-residents
Through this sentence, the Supreme Court acknowledges the difference in treatment arising from domestic law in which a criterion of connection is applied that leads to a different treatment being given in applicable regulations relating to Law on Inheritance and Donations to residents in a non-EU or non-EEA country.
Along these lines, the Court of Justice of the European Union already passed judgement in a Sentence dated 3rd September 2014. In its application, the regulations of the Law on Inheritance and Donations were modified in relation to Community residents, as the applicable criterion infringed one of the basic principles of the EU: that of free movement of capital.
Both sentences include the criterion that a regulation from a Member State making taxation on an inheritance of donation dependent on the place of residence of the deceased and/or successor at the time of death, or the place of residence of the donor and of the donee at the time of the donation, or the place where a property subject to inheritance or donation is located is not acceptable when this means that inheritances or donations between non-residents or involving property located in another Member State have a higher tax burden than inheritances or donations only involving residents or properties located in the Member State of taxation, leading to a restriction in the free movement of capital.
Hence, the Supreme Court goes beyond adapting the aforementioned domestic regulation, and includes the possibility of recovering the tax in the case of discrimination due to the place of residence.
Therefore, it is advisable to check on all operations subject to the Tax on inheritance and donations where fiscal treatment received by the taxpayer compelled to make payment may have been different compared to the system applicable to a Spanish or EC resident.
It must be remembered that the term for requesting the return of undue taxes due to overpayment is generally 4 years.
