Spanish Constitutional Court allows to recover the Plusvalia Municipal
According to a recent judgement of the Spanish Constitutional Court dated on October 26th, the way of calculating the Municipal Capital Gains Tax (also known as “Plusvalía Municipal”) is unconstitutional.
Additionally, on November 10th a new Law -in form of Royal Decree- has entered into force. This new Law establishes a new way of calculating the basis of this tax, due when someone sales or receives by inheritance or gift a real property in Spain.
This memo try to summarize that practically all the situations that are not affected by the statute of limitations are susceptible to be appealed in order to obtain the refund of the money paid to the City Hall.
It is possible to distinguish between the following situations:
A) Situations produced between October 26th and November 9th.
There is no obligation to pay the tax since between these dates there was no formula for calculating the tax.
B) Situations carried out after November 10th
We agree with the majority of the tax advisors in indicating that it is very controversial how this new Law was created (Royal Decree), since the Constitutional Court has been considering unconstitutional the use of Royal Decrees to regulate essential elements of a tax.
Therefore, we guess that appeals will be filed against situations calculated since the entry into force of this new Royal Decree.
C) Situations occurring prior to the Sentence on October 26th
The Constitutional Court considers that situations prior to October 26th that are not final will be null and void, but only in the event that they have been appealed before this date.
In our opinion, this limitation to retroactivity infringes several articles of the Spanish Constitution and the rest of the legal system.
However we understand that all situations that are not final would be subject to appeal. These situations are those in which less than 1 month has passed since the notification of the liquidation or less than 4 years passed since the presentation of the self-declaration.
Therefore, although it will not be an easy path, and it will probably be necessary to wait for the pronouncements of the European Court of Justice, we understand that all non-firm situations prior to October 26th would be subject to appeal.
D) Situations in which the transfer has been made at a loss or with little gain.
These situations are still fully appealable since the previous unconstitutional Judgements dated on 2017 and 2019 are still fully in force, so it will be possible to request the full refund in case of transmission with losses or if more tax was paid than the gain obtained. This would be the first issue that should be analyzed prior to the rest of situations described before.
If you have transferred a property in Spain in recent years you should contact a specialist to verify if you are entitled to a refund of the tax paid to the City Hall.
Spanish Lawyer NYC can help you to recover quickly and easily the amount paid for the Plusvalía Municipal.
You can contact us by e-mail at fgs@SpanishLawyerNYC.com or through the contact form at www.SpanishLawyerNYC.com