Municipal capital gains tax and transfer without gain
A recent Supreme Court ruling opens the door to claiming a refund of the municipal capital gains tax paid on transfers of land that had not increased in value, even in the case of final liquidations…
What is municipal capital gain (Plusvalía municipal) in Spain?
In Spain there are two capital gains taxes:
- Capital gains tax on the land
- Capital gains tax on the property
Plusvalía municipal or Municipal capital gain is the capital gains tax for the land.
And is the profit you make only in the land when you sale a property.
i.e. all properties in Spain has a value of the property and the land. This value (property and land) use to be state in the Ibi receipt.
And the plusvalía or municipal capital gain is the difference between the value of the land when you sold the property and when you bought it.
The capital gains tax is usually settled by the local councils, although in the Valencian Community it is settled by SUMA.
Municipal capital gains on an inheritance
The Constitutional Court has confirmed that no municipal capital gains tax is payable on the sale of property at a loss… And in case of inheritance?
Ruling
The Constitutional Court has confirmed that in sales of real estate where there has been no increase in the value of the land, no municipal capital gains tax is payable.
Therefore, if you are going to sell a property and this sale generates a loss, you should oppose the payment of the tax. And if you have already self-assessed the capital gains tax, apply for a refund.
Capital gains tax on an inheritance
However, these rulings also provide arguments for opposing payment (or claiming a refund) in transfers of property by inheritance (or donation), in which the capital gains tax must be paid by the acquirer:
- According to the Court, for this tax to be payable, there must have been an increase in value of the land during the period of tenure of the previous owner, as only in that case is there a real economic capacity on the part of the taxpayer.
- Therefore, it opens up the possibility of claiming in all cases where this requirement is not met, and not only in cases of sale (such as, for example, if a property has lost value since the date on which the original owner acquired it).
Claim capital gains
If you are in this situation and the property you are inheriting has lost value, you can oppose the payment of the tax:
- If in your municipality there is a system of communication (it is the Town Hall that settles the tax and claims payment), communicate the acquisition and claim that there is no obligation to pay by application of these rulings.
In general, the deadline for this notification is six months from the date of death (extendable up to one year if requested).
- On the other hand, if the tax is collected by self-assessment, one option is to present it with a zero tax liability.
You can also pay and immediately afterwards contest the self-assessment by requesting a refund of undue income.
Claim also in inheritance transfers where the property has not increased in value. These rulings provide arguments for doing so.
CONSTITUTIONAL RULINGS
Two rulings on municipal capital gains
A few years ago, the Constitutional Court issued two important rulings against the way municipal capital gains tax was calculated, which forced a change in the law:
- In May 2017, it ruled that it was unconstitutional to require such a tax on transfers of land with no increase in value.
- In October 2021, it extended the unconstitutionality to the entire way of calculating the tax.
Temporary effects of the municipal capital gains judgment
The fact is that, while in the second ruling the Constitutional Court limited its temporal effects, it did not do so in the first one.
In the second judgement, it was established that final settlements notified before the date on which the judgement was handed down could not be rectified, nor could those which, although not final, had not been challenged until that same day.
However, in the first judgment the court did not say anything about this.
The Supreme Court admits the possibility of initiating a full nullity procedure in the case of municipal capital gains tax assessments issued by the Administration. This will not be possible in cases that have already been judged and with a final judgement.
Interpretation by the supreme court
Appealable settlements
Due to this lack of foresight, the Supreme Court considers that when land has been transferred without an increase in value, it is possible to claim a refund of the municipal surplus value paid on the basis of tax assessments issued by the Treasury.
According to the Court, this is possible even if the liquidation is already final because it has not been appealed at the time (the taxpayer has one month to make a claim).
Void as of right
The Court interprets those settlements as null and void as a matter of law, since the constitutional principles of economic capacity and non-confiscation were infringed.
For this reason, it has modified its previous criterion and now considers that this unconstitutionality can be included among the cases in which it can be declared null and void.
Practical implications for capital gains
Return
The fact that these settlements are null and void is important:
- If they were only “voidable”, they would have been valid for the purpose of interrupting the limitation period and, once the one month period had elapsed since they were notified, they could no longer be appealed.
- On the other hand, if they are declared “null and void”, the proceedings are deemed never to have been initiated.
As a result, despite having become final, it is still possible to initiate “proceedings for a declaration of full nullity” and request a refund of the tax, even if more than four years have passed.
Caution
Before initiating one of these procedures, the following should be borne in mind:
- It is no longer possible to appeal settlements that were claimed in the past and which have become final because they are cases that have already been judged and with a final court judgement.
- The judgement focuses on tax assessments issued by the tax authorities.
As for self-assessments, we will have to wait and see whether the courts adopt the same criterion and also allow them to be claimed through the full nullity procedure (by law, this procedure is reserved for administrative acts).
Source
Tribunal Supremo, 28 de febrero de 2024.
Constitutional Court, 11 May 2017 and 26 October 2021.
