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The Regional Economic Administrative Court (TEAR) of Madrid has issued a "novel and surprising" resolution, to which EL MUNDO has had access, in which for the first time it accepts to consider large a family of two parents with two children in which the woman was pregnant with the third child, although this had not yet been born.

Specifically, this Court has given the reason to the family, which claimed to be considered large for the purpose of paying the Tax on Patrimonial Transmissions and Documented Legal Acts (ITP-AJD). The claimants bought a home for habitual residence in June 2020 and had to pay 16,350 euros for this tax, as the general tax rate of 6% was applied instead of the 4% that corresponds to large families. At that time, the mother was pregnant with her third child, who was born in September of that year, with which she claimed a posteriori considering that the reduced rate of 4% should have been applied and requested the refund of the difference, of 5,450 euros, with the corresponding default interest.

The Registry of the Community of Madrid understood, before the claim of the family, that "the personality is acquired at the moment of birth alive", with which it considered that the requirements to consider them large family were not met and denied the application.

The family then filed an administrative claim with the TEAR of Madrid, alleging that according to article 29 of the Civil Code "the conceived is considered born for all the effects that are favorable to him". This body concluded that not considering them a large family would be "contrary to the right to protection of families". "What the rule aims to do is to facilitate access to housing that is better suited to the circumstances of the large family, and the birth consolidates the provisional application of the tax benefit at a time when the member who determines the origin of the 'numerous' specification as the family definitor had been conceived, even if he had not yet been born," Conclude.

Fernando Herrera, senior associate of Benow Partners, who has defended the case, explains to this media that "this is the second resolution of a TEAR, after one issued by Valencia, in which it is determined that the third unborn child conceived, the nasciturus, serves to grant the status of large family . This interpretation opens the way to the initiation of new procedures aimed at recovering the amounts unduly paid during the last four years, "he warns.

In the opinion of Luis Pérez, managing partner of this firm, "the resolution could serve as a basis to promote its application in other cases where the condition of large family supposes access to some type of tax benefit, in such a way that they can be applied during the gestation time of the third child".

Criterion extendable to other taxes and aid

Luis del Amo, technical secretary of the Registry of Tax Advisors Economists (REAF), admits to EL MUNDO that the resolution is "novel and surprising", since this criterion "has never been applied in this tax or in any other". "The criterion could be transferred, mutatis mutatis [changing what was necessary], to other taxes such as personal income tax. If, for example, on December 31, a family has two children and the mother is pregnant with the third, she could request an Income Tax deduction for large families, and the Tax Agency could understand that it is and that applying the deduction would benefit that child when it is born because the family has more disposable income. "

Today, if that family applies that deduction, he says, the Tax Agency would make a request and could present the birth certificate of the third child and the aforementioned resolutions to prove that he is entitled to that reduction.

In the opinion of the REAF expert, "it is presumable that the Central Economic Administrative Court (TEAC) establishes doctrine and that if any claim in this regard reaches the judicial channel, that the Supreme Court has to rule if there are contradictory judgments of autonomous High Courts of Justice. But, in the end, it is unpredictable what the Supreme Court could fail."

Javier Vinuesa, partner of the Tax area of Gómez-Acebo & Pombo, agrees that "this criterion should be applicable to any other tax", but specifies that "in the event that the child is not finally born, it will be necessary to regularize the situation". The family should notify that it has lost its status as a large family, even if the third child has not been born or has not been born alive.

This lawyer also points out that if this change of criterion is extended, it would not only have an impact at the fiscal level, but would prevail when requesting all the aid or benefits granted to these families and regulated in the Law for the Protection of Large Families, such as priority access to some services (such as school places). education scholarships (for textbooks, nurseries, universities ...), discounts on some services (transport passes, boat or plane tickets, museums ...), some benefits (social bonus, thermal voucher, water bonus) or some fees (ID and passport), among others.

The Tax Agency does not want to pronounce on a tax that it does not collect, as is the case of the ITP-AJD, of regional scope. Legal sources point out that for this body to change its criteria in this regard it would first be necessary for the Central Economic Administrative Tribunal (TEAC) to officially adopt it – something that could happen if the resolution is appealed by the Community of Madrid or if there are contradictory pronouncements of other TEAs – and, in that case, it would be necessary to see if it does so only in reference to that tax or leaves it open to more interpretations . In any case, taxpayers could claim the same treatment as that received by the family subject to the resolution, which would force the Agency to assess whether or not to change the interpretation used to date.

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