Several complaints addressed to the Spanish Tax Agency have been won representing non-resident French in our country.
The Court of Justice of the European Union has condemned Spain by the discrimination that had been practiced in the field of the payment of such taxes. Until then, the Regional Governments applied a series of tax discounts in the payment of taxes of succession and donation (differently in each community), but only applicable to taxpayers being resident in the concerned region, thus depriving these benefits to non-residents to the detriment of the article 63 of the Treaty on the Functioning of the European Union, and article 40 of the agreement on the European Economic Area Agreement which consecrates the free movement of capitals.
The decision of the Court of Justice of the European Union of date 3 September 2014 solving the condemnation of the Spanish State by ignoring those rules can be found here.
In the context of this resolution, the BCVLex firm filed a lawsuit aiming the refund of amounts paid under the discriminatory legislation between taxpayers in comparable situations, thus attacking the free movement of capitals, which is compulsory in the European Union unless express provision.
The claim filed by BCVLex managed successfully the Spanish Tax Agency to resolve the rectification without even going to court, returning the amounts wrongly paid (several tenths of thousands of euros) with the corresponding legal interests.
Such claims should be equally successful in cases of inheritance or donations regarding properties located outside the Spanish territory.
If in the course of the past four years you have consented to a donation or participated in a succession that once – necessarily – led to the payment of taxes for the benefit of the Spanish Tax Agency, having a non-resident in Spain involved, please feel free to submit your case to the BCVLex Law Office for assessment.
Specifically, this success is founded on the application of article 32 of the General Tax Law, which allows the implementation of procedures against the tax agency in order to recover improper payments, with a 4 years period of limitation referred to in article 66.d) of the same legal text. This period begins to run the next day of the period for payment set for the taxpayer, or the day following the notification of the resolution that recognizes the right to obtain the refund of the payment unduly made to the Treasury.
The origin of these improper fees derived from the fact that the Law 29/1987 of 18 December 1987 relating to inheritance and donation tax, forwarded to the provisions of the Law 21/2001 of 27 December 2001 regarding fiscal and administrative measures about the new funding system of Regions subject to the common regime and Autonomous Cities, that was repealed by Law 22/2009 of 18 December 2009 which explicitly envisaged in articles 32 and 48 the possibility for Regions to apply the reductions which they considered appropriate, subject to the residence in Spain of taxpayers.
We can only celebrate the decision by the Court of Justice of the Union European, guarantor of the founders European Union Treaties’ implementation, and consequently, of the equality of all citizens in the extensive but specific scope of freedoms.