The Constitutional Court saves mayors from having to return millions of euros from capital gains tax

• Q&A Capital gains tax: the taxpayer can only request a refund if they contested it before cancellation

Spanish city councils have, for the moment, been left without their second main source of income after the Constitutional Court published the ruling on Wednesday that annulled the so-called municipal capital gains

(

).

However, the same ruling saves the councils from the expected barrage of claims that could cost millions of euros to the municipal coffers, taking into account that each year

paid for this tribute

The ruling tries to avoid this situation by narrowly limiting the cases in which taxpayers will be able to claim the return of the tax from now on.

What does the judgment of the TC say?

The text annuls the tax calculation formula but establishes that "situations susceptible of being reviewed based on this ruling cannot be considered those tax obligations accrued by this tax, which at the date of issuance of the same -October 26- have been decided definitively by means of a judgment with force of res judicata or by means of a final administrative resolution ".

In this sense, the court clarifies that the provisional or definitive liquidations of the capital gain that have not been contested at the date of the ruling will also be considered "consolidated situations".

Yes they can claim ...

Therefore, they will be able to claim all the settlements and self-assessments that have been claimed and have not received a response (this means that they are not firm).

In addition, those settlements and self-assessments that are settled from October 26 until there is a new calculation method are null and void, so until they have a new method to calculate the tax they should not settle it.

They will not be able to claim ...

On the contrary, settlements or self-assessments that have not been claimed cannot be claimed.

before the judgment nor those final administrative judgments or resolutions, that is, administrative judgments and resolutions that have not been appealed at the time.

Inequality between taxpayers

From the legal team of

highlight the "inequality" that the resolution generates among taxpayers, "because it leaves out hundreds of thousands of taxpayers in the return of what they once paid for this tax." The magistrate

also refers to this aspect in the private opinion that he establishes in the ruling, according to which the sentence causes inequality among taxpayers since those who paid the tax without filing a claim will not be favored nor rectification of any self-assessment, taking into account the situation of legitimate confidence generated by the previous pronouncements of the Court in which it declared that the tax was in accordance with the Constitution in its current configuration.

Reopen the case

Precisely that inequality and the absence of retroactivity of the sentence has generated considerable disagreement in organizations such as

(Association of Financial Users), where they have begun to study the possible ways of claiming the self-assessments carried out in the last four years "since there are tools within the tax regulations that allow the case to be reopened ".

According to its first conclusions, the tax regulations allow to present a rectification of the self-assessment or a complementary declaration to correct errors to the detriment of the Public Treasury.

"In this way, a new claim procedure would be opened that the Administration will be obliged to respond and, we hope, will do so for the benefit of the taxpayer who did not claim," they point out from the organization.

"It does not seem acceptable to us that the Constitutional Court rewards those who systematically resort to paying taxes and punish those citizens who trust that the Administration is collecting correctly," declares

, president of Asufin.

In any case, the effects of the sentence are immediate and as soon as it is published in the BOE (Official State Gazette), the capital gain cannot be collected in any real estate sale and purchase transaction.

European way

Regarding the non-retroactivity that the TC ruling incorporates, they believe that "it could be overthrown by Europe, as has already happened with the Supreme Court ruling on the floor clause."

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