Municipal capital gains not appealed before October 26, 2021 cannot be claimed

Two years ago the Constitutional Court handed down one of the most important economic rulings of the last decade: it annulled the municipal capital gains tax, which that same year involved the collection of more than 2,000 million euros.. Now, the Supreme Court has established that the provisional or final liquidations of the municipal capital gains that had not been challenged or appealed before the resolution of the TC of October 26, 2021 cannot be claimed.

In a ruling dated July 10, the High Court closes the door for administrations to claim millions in amounts, thus agreeing with a taxpayer who claimed in Pontevedra.

The sentence that eliminated the tax, although it was announced on October 26, 2021, was not published in the Official State Gazette until the 25th of the following month, so the administrations took the opportunity to claim it during that month.

In this sense, the Supreme Court declares that a tax assessment not appealed before the declaration of unconstitutionality is known, is a consolidated situation and that it is not affected by the declaration of unconstitutionality of the tax, nor can it be annulled based on it. The Organic Law of the Constitutional Court, indicates the sentence, expressly provides for the possibility of publication of the ruling before the mandatory publication by the BOE.

Application of other sentences

However, the Supreme Court adds that it is possible to annul tax assessments by applying other unconstitutionality rulings in which the Constitutional Court did not limit the temporary effects of its decision, such as the cases of property transfer assessments in which there was no profit, or when the tax is confiscatory because it absorbs all the profit.

The TC annulled various aspects of the municipal capital gains tax, understanding that “even if the fee is not greater than the capital gain actually obtained, it is excessive or exaggerated and could injure the principle of non-confiscation.”

In other words, it rejected the fact that it can be claimed with retroactive effect, so that the annulment of the tax calculation excludes those paid, liquidated or judged, and those that have not been denounced.