The nullity of goodwill and how it affects international successions

As lawyers experts in claiming the nullity of the municipal capital gain, we have been announcing for the last 4 years that if the sale value of a home is less than the purchase value, there is no wealth enrichment, but a loss and, therefore, it should be exempt from taxation. Possibilities are also being studied in which, even though there is a profit, this is lower than the municipal criteria, which would also generate a partial refund right.

Many foreigners or non-residents in Spain are unaware that they have the right to claim the Spanish capital gains tax in the case of inheritances where the deceased or deceased is registered or in the case of the purchase or sale of real estate in Spain. Don’t you know what the municipal capital gain is? This guide is especially focused on non-residents in Spain for an update of the current situation in relation to the municipal capital gains tax and the latest rulings or normative references that are developed throughout the guide.

What is nullity municipal capital gain?

Capital Gain is not a legal concept, it is a word that does not legally exist, as it was replaced by the name Tax on the Increase in the Value of Urban Lands (IIVTNU), although it is still called municipal capital gain in a vulgar way and to this day it even appears on some forms of public receipts. So, it is convenient that you familiarize yourself with what IIVTNU refers to Plusvalía.

This tax is municipal, that is, it depends on each City Council, so the tax burden depends on the specific municipality, its purpose is to tax the increase in value that a sale, inheritance or donation of housing or land may experience. In principle, it taxes all real estate in general.

Who pays the municipal capital gain?

The capital gain is always paid by the seller.

Unless you are not a resident of Spain, in that case, if we do not reside in Spain, it may be agreed in the sale contract that the buyer takes charge of it.

At this point, if you are a foreigner, we recommend that you be advised by lawyers when reviewing the different documents for the sale or purchase of the real estate, especially the earnest money and notarial deeds at this point.

In the case of inheritances, the heirs must pay it. As in the case of donations, it is paid by those who receives them.

How is the municipal capital gain and its nullity calculated?

To calculate the municipal capital gain, the taxable base of this tax or value of the home must be multiplied by a coefficient determined by each municipality and that in no case may exceed 30%.

We are not going to go into the methodology, since from November 10, 2021, it is allowed to choose between two methods. 1º) Real capital gain and 2º) increase the “objective” of the value of the land that is based on valuations apart from the cadastral value. Both methods are nuanced by the Constitutional Court and a new Law is awaited. You will find details later in this article.

When is the municipal capital gain paid?

It must be paid in 30 days from when it is acquired either by sale, inheritance, or donation, although it varies according to the municipality. In the case of inheritances, it is extended up to 6 months.

Can I pay the municipal capital gain in installments?

Yes, you can request the fractional payment of this tax with variable installments and in around 24 months. Some municipalities request monthly minimums or payment guarantees. It is convenient to do it if you do not arrive since the surcharges are 5-20% which is significantly higher than going to the banking market or requesting the fractionation.

Can I get rid of paying?

We do not recommend it.

In any case, the municipal capital gain prescribes four years from the expiration of the mandatory term of voluntary filing of the tax.

However, know that it is one of the main financing formulas for municipalities, so they are usually aware that this does not happen.

Affected by the Municipal Capital Gain, and you have not yet claimed?

Taxpayers who have paid the municipal capital gains tax, in a case where the value of the affected land has been depreciated, can claim the payment of the tax from the City Council if they have not been “fatally injured” by the STC of October 26, 2021. Therefore, that we recommend reading this article.

On October 26, 2021, we found ourselves with a mixture of feelings, a jug of cold water for many taxpayers who have not yet claimed the capital gain, hope for some who are already clients of our firm and have claimed the capital gain in due time. And some hope for the future for all Spaniards in general. The news is that in relation to the municipal capital gains tax it is recognized that its calculation system is unconstitutional and is endorsed by a ruling of the Constitutional Court.

This fact gives us hope for all the clients with whom we have worked over the last four and a half years to come, the municipalities applying an incorrect calculation of the same.

4 years of hard work in connection with claiming undue capital gains

Our first claims stemmed from the first pronouncement of the Constitutional Court in this sense after the STC ruling 11-5-2017 where it declared unconstitutional to request for the first time the tribute to cases of sales at a loss and that was confirmed two years later again in the Constitutional Court via STC of 10-31-2019.

The Judgment of the Constitutional Court of February 16, 2017

It opened the door to claim from the municipalities the amounts paid for the so-called capital gains tax in whole or in part, by allowing to challenge the settlements on the occasion of the transmissions that take place from that date.

The underlying issue as expert lawyers in the nullity of the capital gain, is that the municipalities were not complying with it and the vast majority of the claims in the more than 7,000 municipalities of Spain ended up in the majority of cases in the courts or with claims in Administrative route since until October 26, 2021, it was the taxpayer who had to prove that there was no enrichment and all our resources were aimed at proving that there was no enrichment.

STC’s Unexpected Turn, October 26, 2021

On October 26, 2021 everything changed, and the calculation system is declared unconstitutional, which in 2019 endorsed forcing lawyers and taxpayers to prove that there was no enrichment. With the new ruling, the Plenary of the Constitutional Court declares the unconstitutionality and nullity of the objective system for calculating the taxable base of capital gains tax.

The problem is that the Constitutional Court publishes the sentence and makes it firm, maintaining that only those taxpayers who have claimed before October 26 will be able to request a refund of the amount paid.

And here we move away from the right to enter the field of politics because the underlying problem is the Capital Gains that move a lot of money and is the main route of municipal financing. However, with the real estate crisis, the price of housing plummeted, as did new-build homes and that is the reason why, as expert lawyers in the nullity of capital gains, we have been systematically claiming since 2017. The taxpayer is right, but the town councils systematically deny it in all the town councils and municipalities of Spain because they are left without financing channels since they are excessively dependent on taxing real estate and land in a context where it is not built and the sale prices are mostly at losses.

You can see the details in INFORMATIVE NOTE No. 102/2021 of the Constitutional Court:

The nullity of the capital gain will not have retroactive effects

The Constitutional Court has eliminated any possibility that municipalities can continue to collect capital gains tax; however, it leaves out those who did not claim.

Hope for those who claimed. Those who did not dare remain out.

The Constitutional Court has upheld the matter in a recent Judgment of October 26, 2021, published on November 3, declaring unconstitutional and null the method used to calculate the taxable base of the municipal capital gains tax. The ruling affects all the sale and purchase operations signed as of the Judgment and the resources on the payment of this tax that is still pending resolution.

The most controversial issue in this ruling is that it does not allow new claims to be initiated, but only benefits existing ones that are in the process of being resolved and that have not exceeded the 4-year term. Well, those would be prescribed. Or what is the same, if you have not requested the claim, you cannot do it in this sense as expert lawyers in the nullity of the capital gain we are happy with the previous work carried out with the hundred of clients who have trusted us.

Likewise, it seems that operations between October 26 and November 11 are exempt.

The Constitutional Court refuses this ruling, probably due to pressure from the Government, which, as we know, names its member. So if we go into some foundations of the sentence, we observe:

“In the case of IIVTNU, in the first place, that those who are subject to taxation should only be those who experience an increase in the value of the urban land object of transmission, as resolved by STC 59/2017 (FJ 3) by requiring transmission of the land urban plus materialization of the increase in value for the birth of the tax obligation; that is, a real increase, and not a potential or presumed one, for the realization of the taxable event. And, secondly, that those who experience this increase are subject to taxation, in principle, based on the actual amount thereof, thus duly connecting the taxable event and the tax base, since the latter is nothing more than the quantification of the material aspect of the objective element of the former. “

Who is left out of the application for nullification of the municipal capital gain?

The Constitutional Court has dealt a hard blow by canceling one of the main municipal revenues: the capital gain has been falling on assets from purchases, inheritances, and donations.

The court, which communicated that its decision is not retroactive, so the ruling declares the intangibility of the firm situations existing before the date of October 26, 2021, or what is the same, leaves out:

• The liquidations of the tax have not been appealed.
  Settlements appealed in due course, and pending resolution.
  The appealed liquidations, dismissed administratively if they do not present a new appeal or are out of time.
  Self-assessments that were not presented and that have not yet been prescribed can no longer take advantage of this sentence.

And he makes it obvious by stating that:

“Situations that may be reviewed based on this judgment cannot be considered those tax obligations accrued by this tax that, at the date of issuance of the same, have been decided definitively by means of a judgment with force of res judicata or by means of a final administrative resolution. These exclusive effects will also have the consideration of consolidated situations (i) provisional or definitive settlements that have not been contested on the date of issuing this judgment and (ii) self-assessments whose rectification has not been requested ex art. 120.3 LGT to said date.”

The new legislation could have retroactive effects

In this sense, there is controversy at the legislative level, as a new Law is necessary. Municipalities pressure the Government, indicating that if they cannot obtain this tax they cannot be financed, so it is not clear if the new Law will tax the losses or will allow filing returns at 0.

Journalistic media seem to indicate that the new municipal capital gains tax regulations will have a transitory provision. This will allow its application to situations prior to its entry into force.

As lawyers, our role is to stick to existing regulations, not to drafts or negotiations. Otherwise, we would not like to trust them.

Because it was public knowledge that the municipalities were acting irregularly and that they were receiving complaints systematically, silencing any initiative in this regard with the intention not to return the amounts voluntarily in the claims of taxpayers who requested the return of undue income because it is considered that the calculation formula used by the municipalities to determine the taxable base of this tax is erroneous, with the result of throwing a tax debt greater than that which would correspond if the resulting mathematical operation had been carried out correctly. Which means having paid between thirty and forty percent more for this tribute.

The only certain thing is that if you have paid the capital gain on a sale price at a loss, we recommend that you contact lawyers who are experts in the nullification of the capital gain, especially since the Constitutional Court Judgment published on November 3, 2021 to analyze the viability to claim the amounts for municipal capital gains tax unduly paid.

Conclusions on the nullity of Goodwill

Is it advisable to claim currently with expert lawyers in the nullity of the capital gain?

1. If you have missed the claim period, a claim currently makes no sense.
2. If you appealed, were denied, and exhausted the deadlines to continue claiming, a claim does not make sense either.
3. If you are on time to appeal if you can invoke this sentence.
4. If you are in time to file the return for an accrual prior to October 26, 2021, if it makes sense to invoke the judgment.
5. If you have presented the declaration, but it is not firm, you can also appeal.

What can I do from now on?

1. Nobody knows what will happen to the claims presented since the draft of the new Law is unknown, but it will be necessary to be attentive to the courts since the municipalities are not expected to position themselves individually. What we can tell you is that it is a tax currently due, so you cannot ignore it.
2. For sales after November 10, you can choose between two calculation systems. The current one and a new one.
3. Sales, inheritances and donations between 10/26/2021 and 11/10/2021 will not pay the tribute as neither the old nor the new regulations, which do not have retroactive effects, can be applied to them.
4. If we inherit before between 04/26/2021 and 10/26/2021, and we did not make the liquidation of the capital gain, we should declare the transfer to zero, without quota. This is because there are no regulations to calculate it.
5. If we sold the house before 10/26, and we are within 30 days to make the liquidation, but we have not yet paid the tribute.
6. These taxpayers must declare the transmission, or self-liquidate, to zero (according to the municipal ordinance). And oppose any settlement that comes later.
7. If we have presented the documentation for the liquidation of the capital gain, however, we have not yet received the letter of payment or any other notification from the town hall.
8. These taxpayers must appeal the settlement that finally reaches them
9. If we have already appealed the liquidation of the Treasury.
10. If they appealed the liquidation before October 26, these taxpayers will almost certainly see their resource estimated, so they should not worry excessively.

BIBLIOGRAPHY. WE LEAVE THE TEXT OF THE PRESS RELEASE FOR YOUR READING.

INFORMATION NOTE No. 102/2021

THE PLENARY OF THE TC DECLARES THE UNCONSTITUTIONALITY AND NULLITY OF THE BASE CALCULATION OBJECTIVE SYSTEM GOODWILL TAX TAX

The Constitutional Court has upheld the issue of unconstitutionality raised by the Contentious-Administrative Chamber of the Superior Court of Justice of Andalusia, Ceuta and Melilla, based in Malaga and, consequently, has declared the unconstitutionality and nullity of arts. 107.1 second paragraph, 107.2 a) and 107.4 of the consolidated text of the Law regulating local finances, approved by Royal Decree

Legislative 2/2004, of March 5, in the terms provided in the legal basis 6.

The sentence, of which the magistrate Ricardo Enríquez has been the rapporteur, rules out that, as opposed by the State’s lawyer, there has been a deviation between the reason for unconstitutionality raised by the order to raise this question and what was resolved by it. In that order the Court indicated that the required fee could produce a confiscatory result and that this consequence was due precisely to the application of a method to assess the taxable base that is far from reality, and this starting point of that order is the that develops the sentence.

Unlike the cases resolved by SSTC 26/2017, 37/2017 and 126/2019, in this case the problem that arises is not the adequacy of the tax to the principle of economic capacity as the basis for taxation, since the increase of the value of the land has existed, but its adaptation to the principle of economic capacity as a measure of the tax base, and the sentence begins by reasoning that at this point it has to depart from a doctrine that began ATC 71/2008, of February 26 , and reaffirm, in accordance with the doctrine prior to that order, that the principle that it must contribute to the support of public expenditures “in accordance” with economic capacity operates with respect to all taxes and is injured if those who have a lower economic capacity bear a greater tax burden than those with a higher capacity.

Accepts the judgment that the method of assessing the tax base according to modules or objective criteria is not necessarily unconstitutional as long as a series of conditions are met that are not respected in the articles analyzed, because the regulation carried out by those articles lead to a result that is significantly different from the real values ​​of properties in the real estate market. Therefore, it considers that they are unconstitutional and void.

Regarding the scope of the declaration of nullity, after reiterating the call that has been made to the legislator since STC 59/2017, to carry out the pertinent modifications or adaptations in the legal regime of the tax to adapt it to the requirements of the Article 31 EC, establishes that situations susceptible of being reviewed based on this judgment cannot be considered, those tax obligations accrued by this tax, which at the date of issuance of the same have been decided definitively by means of a judgment with force of res judicata or by resolution firm administrative.

The ruling has the concurring vote of President Juan José González Rivas who considers that the serious problem of setting the tax on the increase in value of urban land resides in the treatment of urban land in Spain as a single category, without attend to its singularities, the municipality and the area in which it is located. In his opinion, the method to quantify the variation in value starts from an unacceptable premise: that all urban land increases in value and does so linearly throughout the territory in which this tax is applied, which makes this equal treatment of land urban is not reasonable. It also occurs with the dissociation of the value of the land and the value of the building.

Ultimately, it is the absolute disregard for these singularities, which makes the legal, unique and imperative method of delimiting the tax base unreasonable and, therefore, the lack of connection between the taxable event and the tax base is not constitutionally justified. tax base, infringing the principle of economic capacity.

The sentence has the particular vote formulated by the magistrate Cándido Conde-Pumpido Tourón to which the magistrate María Luisa Balaguer Callejón adheres. The magistrate proposes an alternative system to the current one of objective estimation of the tax base. In his opinion, the most appropriate solution should have been not to declare the nullity of the regulation of the base, but to give the legislator a term to regulate the alternative system, of retroactive application, which would have allowed to request the refund of the tax on the increase. of value of urban land in all those cases in which the amount paid is not adequate to the capital gain of the land actually obtained.

On the other hand, they consider that the nullity of the contested rule causes an unnecessary and unbalanced regulatory vacuum that will benefit those who, even having obtained significant capital gains, will not be forced to pay the tax. Those who paid the tax without filing a claim or rectification of any self-assessment will not be favored either.

Madrid, November 3, 2021