The Supreme Court declares the regional section of the fuel tax illegal and endorses the refund

MADRID 4 Oct. () –

The Supreme Court has declared that the Law of the European Union is opposed to the regional rate of the tax on hydrocarbons and that the taxpayers to whom said tax has been passed on have the right to a refund of the amounts that, for this reason, they would have borne. improperly.

In a note, the Supreme Court recalls that during the years 2013 to 2018, Law 38/1992, of December 28, on Special Taxes empowered the autonomous communities to establish a regional tax rate, enabling a differentiated tax depending on the location. where the taxed product was consumed.

Given the doubts raised by the interpretation of European Union Law, the Supreme Court raised a preliminary question to the Court of Justice of the European Union which, in a ruling last May, considered that it is not possible to establish differentiated rates depending on the territory. , in this case, according to the autonomous community.

The Supreme Court thus recognizes the legitimacy of those liable for passed-on taxes to request the Administration to return undue income. Furthermore, the high court has clarified that the obligation to return corresponds to the autonomous community in which the illegal contributions were paid, even if it was not the final recipient of those amounts, without prejudice to the internal adjustments between the State and the autonomous communities.

The ruling considers that the direct transfer of the amount of the tax, via price, carried out by the taxpayer who suffered the impact, to the buyer or acquirer of the product, constitutes the only exception to the right to obtain a refund, with respect to the amount transferred, always that the economic effects of the tax with respect to the taxpayer had been neutralized.

However, this transfer via price to the final purchasers of the fuel does not give them the possibility of requesting from the Public Treasury the portion corresponding to the illegal tax, since this transfer via price is not a repercussion imposed as a consequence of a power legally recognized to the supplier, and, in addition, there are other different ways to direct a claim to the supplier to recover what was paid in such concept, or, where appropriate, to the State for the application of a law contrary to European Union Law.

Now, the Supreme Court clarifies that the proof that said direct transfer has not taken place does not correspond to the taxpayer who suffered the transfer, without the Administration being able to reject the refund, arguing that the taxpayer has not proven the absence of its transfer. economical to customers.

The ruling orders the retroaction of actions so that, based on the criteria it proclaims, the Court of First Instance assesses aspects related to the prescription, the amount of the amounts passed on and the direct transfer of all or part of the amount of the tax to third parties. .

Once this has been verified, the tax administration must refund the corresponding amounts, after verifying that the amounts requested were paid by the taxpayers through the appropriate self-assessments and that such amounts have not already been previously refunded.