Entrepreneurs warn of the risk of "unconstitutionality" of the banking tax

"Nonsense", "artifice of fraud of law" or "unconstitutional" are just some of the qualifiers that the

(IEE) has assigned this Monday to the future banking tax that is expected to reach Congress this week to that the parties vote their admission for processing.

The X-ray of the IEE warns of the risk of "unconstitutionality" of the norm and as a consequence, considers it likely that it will give rise to a series of appeals against its application that will end with its declaration of unconstitutionality.

"As it is proposed, it is a tax, not a patrimonial benefit as they say. It aims to elude the constitutional limits and community law and is hardly admissible from the point of view of legal certainty", said

professor of Financial and Tax Law of the University of Valencia and director of the study that was presented this Monday at the headquarters of the CEOE, the employer's association on which the IEE depends.

"Despite being defined as a non-tax public patrimonial benefit, the temporary levy on banks is actually a tax. It has the typical elements of a tribute and specifically of a tax, given that its budget is in fact made up of facts that highlight the economic capacity, it is managed as a tribute, it is reviewed as a tribute and it is deposited in the Public Treasury to finance public spending", the report points out.

This study adds to the report presented in July, in which the IEE quantified that said taxes could have a contractionary impact on

(2,200 million corresponding to the financial tax and the rest, to the energy tax) and

in terms of employment.

According to the IEE, this type of tax generates legal uncertainty, both in substance and in the form chosen for its processing, by eluding public consultation, the Regulatory Impact Report and the Opinion of the State Council.

Thus, the Institute's experts have criticized that many of the contradictions could have been avoided if the proposal had been presented as a bill and not as a proposal.

"It is a huge artifice of legal fraud [...] and is connected to the income agreement that is not specified in the regulatory proposal" of the formulation, said

professor of Financial and Tax Law at the University Autonomous of Madrid.

"The rule of law is at stake," he added.

legal insecurity

Likewise, the IEE considers that, with the banking tax, the general principle of legal certainty of article 9.3 of the Constitution is violated due to its retroactivity, by submitting to it events that occurred in 2019, before the birth of the obligation, and the tax principles of generality, equality and economic capacity of article 31.1 of the Constitution, by not justifying the reason for the threshold of 800 million euros to be subject or not to the tax, or not considering it as a fiscally deductible expense in the Corporation Tax .

The legal indeterminacy in the identification of those obliged to pay is also revealed, violating the principle of reserve of law as it is an essential element of the tax.

The new tax will tax the extraordinary profits that large financial entities will have due to interest rate increases by

(ECB).

In this sense, the report emphasizes that the concept of "extraordinary benefits" is subjective and that its determination is at the discretion of the Government, without there being an objective element to support it.

The authors also consider that the configuration of the sanctioning regime is especially unfortunate, given that "it does not respect the minimum guarantees required in our legal system."

Specifically, they point out that the infraction for having repercussions, directly or indirectly, the temporary tax or its anticipated income violates articles 9 and 25 of the Constitution, as it can be applied to conduct that may have been carried out before the approval of the law. .

The IEE has also stressed that the regulation of the tax would violate essential elements of Community Law, by discriminating based on residence in Spain or in another country of the European Union, as well as basic principles such as freedom of establishment, freedom to provide services and freedom of movement of capital.

As highlighted, it places credit institutions resident in other EU states in a situation of competitive advantage over those resident in Spain.

Conforms to The Trust Project criteria

Know more