On October 3, the Third Chamber of the Supreme Court, in its Judgment 3256/2018, declared exempt the maternity benefit received by the Social Security, ratifying, in this way, the resolution of the Superior Court of Justice of Madrid, of June of 2017.
The aforementioned Judgment of the TSJ of Madrid, estimated the appeal of a working woman, who requested the declaration of exemption of this benefit and urged the Tax Agency to return the amount entered, for the perceptions of the maternity benefit, in the Personal Income Tax for 2013.
Notwithstanding the foregoing, said resolution was appealed by the State Attorney, with the argument, among others, that the aforementioned maternity benefit, paid by Social Security, has the function of replacing the normal remuneration (not exempt from personal income tax) ) that the taxpayer would obtain for his usual work and that he has ceased to receive when enjoying the corresponding permit. Among his arguments, he added that the exemption contained in article 7 of the Personal Income Tax Law cannot be extended to maternity benefits of Social Security.
Finally, the Supreme Court, in a judgment for the unification of doctrine, has understood that the benefit received by maternity from the National Institute of Social Security, can be incardinated in the case provided for in the third paragraph letter h of article 7 of the Law IRPF, when it states that “Other public benefits for birth, childbirth or multiple adoption, adoption, dependent children and orphanhood will also be exempt.".
From the recent resolution of the Supreme Court, it should be noted that it makes a literal interpretation of article 7 of the Personal Income Tax Law, which states that “also”The benefits received from local communities or entities will be exempted, and therefore, he interprets that the literalness of the article is inclusive and not exclusive of maternity benefits, within said exemption.
Thus, says the Supreme Court, in the third legal basis of its recent Judgment, that the maternity benefit “it is the subsidy managed by the Social Security that tries to compensate the loss of income of the worker as a result of the rest permit for the birth of a child, adoption, guardianship or foster care, and during that period the work contract is suspended suspending the work activity."
After knowing this resolution of our highest Court, the Tax Agency, has announced its compliance with said resolution, which corrects the criteria followed to date by said public body, as well as the criteria that, until this Judgment, had been adopted by the Economic Court -Central Administrative.
Finally, when the uncertainty regarding the exemption from maternity benefits is resolved, it is possible that those taxpayers who have received amounts for maternity benefits, request before the Tax Agency, the rectification of those self-assessments related to the non-prescribed exercises, that is to say , 2014, 2015, 2016 and 2017 in which they have received amounts for said concept and initiate, in the same way, the special procedure for requesting undue income, for the return of the pertinent amounts. It can even be expected that the Tax Agency will regulate a special procedure that expedites the thousands of applications that will be submitted in the coming weeks.
Javier Castilla Fernandez, contributor to the Fiscal Area
