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martes, 07 de diciembre de 2021


Who can claim before the sentence is published in the BOE



The Constitutional Court publishes the final judgment and maintains that only those taxpayers who have claimed before October 26 may request a refund of the amount paid.

The publication of the ruling of the Constitutional Court, where the municipal capital gains tax is overthrown, has made many taxpayers wonder how they should act if they have sold a home or plan to sell it in the very short term. In some cases it is convenient to claim before the sentence is published in the BOE.

The official Constitutional ruling, which was known on Wednesday, November 3, establishes that * situations that may be reviewed based on this ruling cannot be considered those tax obligations accrued by this tax that, on 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. For these exclusive purposes, will also be considered 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 as of that date. *

José María Salcedo, partner of the Ático Jurídico law firm, clarifies that those taxpayers with final settlements will not be able to avail themselves of the declaration of unconstitutionality. And neither will those with settlements within the appeal period or with self-assessments when the appeal has not been filed, or rectification requested. This, despite the fact that, in the latter case, and * in accordance with article 120.3 of the General Tax Law, they were still within a period of time to be rectified *.

The Ático Jurídico partner recalls that the unconstitutionality declared in the judgment of October 26, 2021 can only be alleged if the appeal or request for rectification was submitted before that date, that is, before October 26. Salcedo assures that this could imply a * violation of the right to effective judicial protection of these taxpayers, who have appealed within the term conferred by law, and who have their defense arguments curtailed for having raised an appeal or request for rectification after the October 26th*.

Furthermore, Salcedo questions that the date that is taken into account to limit the effects of the declaration of unconstitutionality is that of the issuance of the sentence and not that of its publication in the BOE (still pending), since article 38.1 of The Organic Law of the Constitutional Court establishes that * the sentences passed in unconstitutionality proceedings will have the value of res judicata, will bind all the Public Powers and will produce general effects from the date of their publication in the Official State Gazette. *

 Is it advisable to claim before the sentence is published in the BOE?

 It is important to see all the casuistry. The first thing to discern is whether the taxpayer presented a self-assessment or received a settlement from the City Council.

 Liquidation of the municipal capital gains tax

1. Taxpayers who have passed the deadline to appeal

In these cases, it is considered that the settlement received is final as it has not been appealed, so it is impossible to claim the municipal capital gain, except through a special review procedure.

2. Taxpayers who appealed a settlement, but have already completed their appeal

In this case, they cannot claim the municipal capital gain because the procedure ended, or because the taxpayer did not want to continue appealing. In both cases, the settlements are considered final, although it is possible to claim the tax through a special review procedure.

3. Taxpayers who received a settlement and are on appeal

Salcedo believes it is convenient for the taxpayer to appeal before the sentence is published in the BOE * to keep open the possibility of invoking the unconstitutionality of the tax in their appeal, based on the fact that it was filed before the sentence had erga omnes * effects.

Self-assessment of the municipal capital gains tax

1. Taxpayers who received a self-assessment, and are in the deadline to request its rectification

Taxpayers who are still in time to request the rectification can also appeal. Its presentation before publication in the BOE of the sentence is of interest to be able to discuss the possibility of invoking the declared unconstitutionality, having started the procedure before the sentence took effect.

2. Taxpayers who long ago requested the rectification of their self-assessment, and it was rejected

Salcedo considers that these taxpayers could also request the rectification again. This, provided that the new request, the one that arises now, is based on reasons other than those invoked in the rectification that was presented at the time.

For example, if a rectification was raised because it was considered to have been transmitted in losses, Ático Jurídico,s partner considers that a new one could be raised, based on the unconstitutionality of the objective system for calculating the tax. The key is that the new request for rectification is based on different reasons than those alleged in the first request for rectification. It is recommended that the request be submitted before the publication in the BOE of the sentence in order to defend that the rectification was raised before the Constitutional ruling had effects * erga omnes *.

In short, José María Salcedo maintains that * we are facing a procedural action (that of appealing before publication in the BOE), which allows us to hope that the tax paid can finally be recovered. And that, on the contrary, does not create damage to the taxpayer, beyond the rejection of the rectification or the appeal presented. This, at least, through administrative, and economic-administrative (when it exists), as the imposition of costs is not foreseen *.