The recent Judgment of Constitutional Court of June 8, 2017 highlights the importance of giving coherence to the interpretation of the legal system as a whole and, consequently, the need not to lose that global vision.
In this ruling, the Constitutional Court declared the First Additional Provision of Royal Decree-Law 12/2012, of March 30, null and unconstitutional, which introduces various tax and administrative measures aimed at reducing the public deficit (hereinafter, RDL 12/2012), known as “Tax amnesty”, by replace taxes that tax the taxpayer's income, specifically: the Income Tax for Individuals, the Income Tax for Non-Residents and the Corporation Tax, for the payment of a single benefit of ten percent of the total value of the assets and rights not declared.
The Deputies who have promoted the appeal of unconstitutionality no. 3856-2012 understand that this measure goes bankrupt with the constitutional principles enshrined in the first section of article 31 of the Spanish Constitution (hereinafter, EC) since it not only allowed regularization at a reduced rate but also authorized partial remission of the main obligation and the total remission of the accessory responsibilities.
In this sense, and in addition to the statement of article 86.1 EC, so that through a decree-law can establish or modify public benefits of a public nature is required to concur:
- A situation of extraordinary urgency that justifies it.
- And that through it does not negatively influence the duty to contribute to the maintenance of public expenditures, in accordance with the statement of article 31.1 EC.
Therefore, the provision contained in the First Additional Provision of RDL 12/2012 approved by the Government in 2012, has substantially influenced the determination of the tax burden, for benefiting a group of taxpayers who had breached their obligations Prosecutors in front of the small business owner or ordinary citizen who attends his tax obligations every year.
Admittedly, the decision taken by the Government five years ago has tried to be an infusion to all Spaniards, given the seriousness of the economic crisis and the need to adjust the public deficit that occurred in 2012.
Thus, the approval by the Government of the First Additional Provision of RDL 12/2012, by a decree-law that violates the fundamental rights, enshrined in our Constitution, has significantly affected, in the position of the taxpayer to contribute according to his economic capacity in the whole of a fair tax system and, consequently, in the way of distribution of the tax burden that must be raised by the generality of taxpayers, which is ordered by article 86.1 EC
For all the above and in accordance with our legal system, the Constitutional Court declares the First Additional Provision of RDL 12/2012, unconstitutional and void for contradicting Article 86.1 EC and without practical effects due to the requirement of the principle of legal security of Article 9.3 EC that it makes impossible, for this assumption in fact, regulatory retroactivity.
Carla Alberola Ruiz from Adana
Fiscal Area Collaborator
