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The Supreme Court cuts even more what municipalities can charge for capital gains tax so that it is not “confiscatory”

The Supreme Court has issued a ruling that cuts what municipalities can claim from neighbors for capital gains tax. After the Constitutional Court rejects that more than what is actually earned could be demanded, the Supreme Court rejects that all or almost all the benefit obtained can be collected. Doing so would be “confiscatory” and therefore unconstitutional.

The Supreme Court resolves the case of a company that sold a piece of land for 17,473 euros more than it had bought. In accordance with the tax regulations, which do not take into account the real profit, the city council of the capital determined a capital gain of 76,847 euros, which resulted from applying the cadastral value at the time of sale and the years elapsed since the purchase.

Applying the Constitutional ruling, the amount due for the tax would have had to be lowered to the real increase, that is, to something more than 17,000 euros. But the Supreme considers that this is not acceptable either. “A situation such as the one described is also contrary to the principles of economic capacity and to the prohibition of confiscation provided for in Article 31.1 of the Constitution,” say the magistrates, who consider that “a result of this nature must also be considered , barely respectful of the demands of the tax justice referred to in the constitutional provision itself “.

“The specific application of a tax that supposes that the taxpayer has to allocate to its payment all or most of the real or potential wealth that such a tax reveals will have a confiscatory character to the extent that it clearly supposes – an excessive, exaggerated burden and, of course, not proportional to that economic capacity that, ultimately,

it justifies the very existence of the corresponding tax figure “, says the Administrative Litigation Chamber.

“It is, therefore, contrary to the Law -as it implies a clear confiscatory scope- a liquidation of the Tax on the Increase of the Value of Urban Land that, applying the corresponding articles of the Local Finance Law, establishes a tax quota that coincides with the increase in value revealed as a consequence of the transfer of the land, that is, that it absorbs all the taxable wealth “.

The Supreme Court regrets that, although some time has passed since the Constitutional Court annulled part of the tax regulation, the legislator has not yet corrected the norm. In any case, it specifies that the Supreme Court is not responsible for replacing the Chambers, so it cannot determine what percentage of the profit falls within the confiscatory limits.

The appeal gives part of reason to the company, but in part also to the city council. As in any previous resolution, the Supreme Court rejects the thesis of the Superior Court of Madrid that the tax should be considered null and that the municipalities cannot claim it.

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