First sentence of the Supreme Court

We were referring in a previous article to the fact that the content of the 11 Constitutional Court Judgment of May of 2.017 on the Capital Gain Tax It had led to an important discussion regarding the scope of it, since it was not sufficiently clear.

In spite of a very "particular" interpretation that was made of said Judgment, and that came to consider that any liquidation based on the content of the Local Treasury Law (LHL) to liquidate the Capital Gains Tax should be considered null (although the seller would have obtained benefits with the transmission) since it was issued based on articles of the LHL that were "expelled from the legal system", this has been rejected outright by the Supreme Court.

The so-called "maximalist theory" was rejected outright by the 9 Judgment of July of 2.018 of the Supreme Court. For the TS, only the return of the surplus value can be claimed in cases where there have been losses (either by transmitting a property, or by inheriting it), the taxpayer can prove it and this is not distorted by the Administration.

And this first Judgment issued by the Supreme Court has been followed by a second one issued at a later date (specifically, the 1.248 / 2.018 Sentence of 17 of July), which fully confirms the Resolution issued earlier by the same Court.

We hope that the rest of the appeals of Cassation that are pending to be resolved by the TS have just clarified the diffuse points that were found after the 11 Constitutional Court Judgment of May of 2.017 and this helps to respond to all the assumptions that were made. they are processing for capital gains accrued prior to said date and which in many cases are formally "suspended". And this is why the assumptions subsequent to the Judgment of the Constitutional Court should be processed as of the modification of the Local Tax Law, which is still pending approval.

Therefore, we can reach a conclusion that does not seem far-fetched: although issues are being clarified, eighteen months after the STC has been issued, uncertainty continues regarding the application of the Capital Gains Tax. And equally, after eighteen months the Law of Local Taxes has not been adapted to the Constitutional mandate.

It seems logical? The impact that could have on the municipal coffers will have nothing to do with this exasperating delay in fulfilling the mandate of the Constitutional Court? Are we not facing a State of Law, one of whose basic pillars is the fulfillment of the resolutions dictated by the Judicial Power? That each one value it as it considers ...

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Daniel Vigo, dig advocats

Daniel Vigo

DiG Lawyers