FMSB Information Note about Plusvalía Tax

October 29th

The Constitutional Court has announced the soon publication of a sentence declaring the unconstitutionality and invalidity of arts. 107.1, second paragraph, 107.2.a) and 107.4 Consolidated Text of the Local Tax Regulatory Law, which imply their removal from the legal system and, for practical purposes, prevents the determination of the taxable base of the tax and, consequently, its liquidation, verification, collection or review.

Consequently, the legislator -and this is what the Constitutional Court has been demanding since 2017-, must from now on carry out the necessary regulatory modifications to adapt the tax and the calculation of the Taxable Base to the constitutional mandate set out in article 31 of the Spanish Constitution.

Said regulation, in the opinion of this office, cannot be carried out by Decree-Law since, in accordance with articles 133 and 86 CE, it plays the principle of reserve of law in tax matters.

It is foreseeable that the legislator will try to establish a retroactive nature of the norm that must now be processed, but in any case it must comply with the general principle of non-retroactivity of the tax norms.

On the other hand, the Judgment seems to contain a pronouncement on the non-application of the same to those settlements that have not been resorted to the date of the same or to those self-assessments that have not been subject to rectification in accordance with the procedure of article 120.3 of the Law General Tax, also on the date of the Judgment.

At FMSB (Font Mora Sainz de Baranda lawyers and economists) we understand that the ruling cannot limit the right to rectify self-assessments included in the General Tax Law, which provides that they may be rectified within four years from their submission and payment, with the consequent refund of undue income.

It is obvious that there is a clear indecisiveness in the current situation, especially when the ruling has not been published, but not exercising rights now may mean the loss of an opportunity in the future, which generates the need to study on a case-by-case basis to analyze whether a refund of the amounts paid for the tax can be requested.