The Constitutional Court published yesterday a note in which it informs that it has declared the unconstitutionality and nullity of articles 107.1 second paragraph, 107.2.a) and 107.4 of the Regulatory Law of Local Treasuries in relation to the issue of unconstitutionality number 4433-2020, promoted by the Contentious-Administrative Chamber of the Superior Court of Justice of Andalusia, Ceuta and Melilla, based in Malaga.
The sentence, of which Judge Ricardo Enríquez has been rapporteur, considers that articles 107.1, second paragraph, 107.2.a) and 107.4 of the consolidated text of the Law regulating local finances (Legislative RD 2/2004 , of March 5), because it establishes an objective method for determining the tax base of the Tax on the Increase in the Value of Urban Land, which determines that there has always been an increase in the value of the land during the tax period. , regardless of whether there has been such an increase and the actual amount of that increase.
The ruling declares the intangibility of firm situations existing before the date of the approval of the sentence. At the expense of knowing the full content of the sentence and analyzing the legal basis of the same, we can advance that those settlements that have acquired firmness because they have not been appealed, will not be able to benefit from the declaration of unconstitutionality declared yesterday by the TC.
However, we consider that Yes, it will be possible to apply said judgment in the case of tax settlements pending appeal or pending resolution of the corresponding appeals, as well as in cases where the four years of limitation have not elapsed in order to request rectification. of the self-assessments of said municipal taxAll this in the absence of reading the full text of the sentence.
Ultimately, the TC opens the door to claim the refund of the tax paid by taxpayers for said tribute, although the City Councils from now on will not be able to proceed to carry out new liquidations until the legislator proceeds to modify the law.
Great and long-awaited news for all taxpayers. We will be attentive to the full content of the TC ruling that has declared the Municipal Capital Gain Tax unconstitutional and we will report on the defense possibilities in each particular case.
Raphael Donet
Director of the Contentious-Tax Area of Tomarial
