July 21 () –
The Supreme Court has clarified that the tax assessments that have not been appealed before the date that the declaration of unconstitutionality by the Constitutional Court on the municipal capital gains tax is established cannot be claimed.
With this judicial resolution, criteria are set in a matter that has been resolved in a different way in the different Contentious-Administrative Courts and Tribunals, in the cases of those taxpayers who were within the term to appeal liquidations for capital gains on the date that the unconstitutionality was declared, but had not yet formalized their appeal.
The Supreme Court magistrates clarify that, however, it is possible to annul tax assessments by application of other unconstitutionality rulings in which the Constitutional Court did not limit the temporary effects of its decision, such as the cases of real estate transfer assessments in which there was no profit, or when the tax is confiscatory because it absorbs all the gain, in addition to any other reason other than the declaration of unconstitutionality.
The Supreme Court, in its judgment 949/2023, of July 10, set criteria on the application by judges and courts of the declaration of absolute unconstitutionality of the tax on the increase in the value of land, known as ‘municipal capital gains’, and the limitation of temporary effects that the Constitutional Court decreed in the judgment known on October 26 and that was later published in the Official State Gazette.
In the case resolved, the Provincial Council of Pontevedra appealed to the Supreme Court the ruling of a contentious-administrative court that annulled a tax assessment for capital gains, in contradiction with the decision of the Constitutional Court to limit the temporary effects of the declaration of unconstitutionality of the rules of that tax.
The Supreme Court upholds the appeal and declares that a tax assessment not appealed before the declaration of unconstitutionality is known is a consolidated situation because the Constitutional Court declared it so in its judgment of October 26, 2021, and that, as such a consolidated situation, “it is not affected by the declaration of unconstitutionality of the tax, nor can it be annulled based on it.”
The Court points out that the Organic Law of the Constitutional Court expressly provides for the possibility of publication of the ruling before the mandatory publication by the BOE and concludes that the delimitation of the consolidated situations as of this date of the ruling is a decision of the Constitutional Court that corresponds only to it, within the exercise of its powers and responsibilities, for which reason judges and courts, as well as public authorities in general, “remain bound and must respect and apply said limitation of effects in their own terms.”
