The taxpayer will be responsible for proving to the city council that they do not have to pay capital gains tax.

• Taxation The new capital gains tax: no retroactive effect, two calculation options and high risk of claims

Both the Ministry of Finance and the Government spokesperson, Isabel Rodríguez, insisted yesterday and also in the preceding days that, with the new tax on the Increase in Value of Urban Land, "citizens who have not won in an operation of purchase and sale, they will not have to pay the capital gains tax ». And they did so because it has not always been the case, but what they did not say is that the person responsible for proving to the corresponding city council

. That is, the council will apply the tax and only if the interested party demonstrates, in due time and form, that he should not pay it, will he avoid paying something that by definition he would not have to pay.

“

must declare the transfer, as well as provide the titles that document the transfer and the acquisition. To verify the non-existence of an increase in value, the transmission or acquisition value will be taken as the one that is greater than the one that appears in the title that documents the operation or the one verified ”, explains the Treasury.

The reason for this obligation for the taxpayer, add sources from the department headed by María Jesús Montero, is that "

" to know if this increase in value has occurred. And they do not contemplate at all that it is the council itself that proves if the profit has been produced, but they do emphasize that the capital gain is a "optional tax", so if any council wants not to apply it they have total freedom.

Another important point of the new rule that the Council of Ministers approved yesterday is that it will be processed as a decree law. And this opens the door to new claims and appeals. "

", explains Patricia Suárez, president of the Financial Users Association (Asufin). "There is a risk of unconstitutionality in the new regulation of the taxable base of the municipal capital gain, when designing one of the essential elements of the tax regardless of an ordinary law", the Finance Technicians have an impact. Therefore, the text that has been prepared to adapt to what the Constitutional Court dictated and that should solve the existing problems, could even generate more doubts.

What is clear is that

, that is, the operations that have taken place since the TC ruled on October 26 and the moment the tax comes into effect, which will be tomorrow, will not be taxed. And on the formula in which the new tax will be calculated, the citizen will have two options. "The tax base will be the result of multiplying the cadastral value by new coefficients that will take into account the real estate reality or will be determined by the difference between the sale price and the acquisition price," explains the Treasury, which at the same time underlines the fact that taxpayers will be able to choose the "most beneficial" one.

Finally, the text includes a measure intended to attack "

"

operations

.

"Capital gains generated in less than a year will be taxed, that is, those that occur when less than a year has elapsed between the acquisition and transfer date and which, therefore, may have a more speculative nature," says the Montero Ministry.

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