The BOE of July 8 has published the admission for processing of the question of unconstitutionality 2577/2023 in relation to Royal Decree-Law 3/2016, by which measures are adopted in the tax field aimed at consolidating public finances and other urgent measures in social matters, due to possible violation of arts. 86.1 and 31.1 EC.
Since the entry into force of Real Decreto-ley 3/2016, measures have been implemented that have had a significant impact on the Corporate Tax quotas from the 2016 financial year. These measures have affected numerous taxpayers and tax groups, generating a considerable increase in said quotas.
Among the most notable modifications introduced by Royal Decree-Law 3/2016, are the following:
a) systematic reversal, through its integration in the taxable base of the Corporate Tax, of the impairment of value of the participations in the own funds of entities. This reversal has been applied annually at a minimum of 20 percent during the years 2016 to 2020, regardless of its accounting allocation and whether or not there has been a recovery of the value of said shares.
b) Reduction of the applicable percentages in the compensation of negative tax bases for taxpayers whose net turnover of the previous year is equal to or greater than 20 million euros. These percentages have been reduced to 50% if the turnover is between 20 and 60 million euros, and to 25% if the turnover exceeds 60 million euros.
In addition, for these taxpayers, the application of deductions for double taxation of dividends and capital gains, both nationally and internationally, established in the previous Corporation Tax Law, has been limited to 50% of the full tax rate.
c) Non-deductibility of generated losses in the transfer of shares in the capital of companies that meet the requirements for the application of the exemption of article 21.3 of the Corporation Tax Law.
In the event that Royal Decree-Law 3/2016 is declared unconstitutional, companies and tax groups could recover the fees paid derived from these measures in years not prescribed.
However, it is important to take into account that the recent Constitutional Court rulings on tax matters have limited their effects to those cases in which the declarations affected by the norm declared unconstitutional have been challenged and are not final on the date of entry into force of the effects of the sentences.
In summary, the admission for processing of the question of unconstitutionality related to Royal Decree-Law 3/2016 has generated uncertainty about the measures adopted and their implications for the Company Tax quotas. Therefore, The companies and tax groups affected must assess the impact of this situation and look for possible legal ways to recover the fees in the event of a declaration of unconstitutionality.
Our team of tax experts is at your disposal to provide you with advice and support in relation to this matter. Do not hesitate to contact us to discuss how this situation may affect your company. and what actions might be necessary.
