In this article we tell you how municipal capital gains affect real estate transactions, what requirements are necessary to claim it and how its application has changed after the recent Supreme Court ruling.
In addition, we will detail the steps to follow to make a successful claim.
What is municipal capital gains?
The tax on the increase in value of urban land, known as municipal capital gains, taxes the increases in value of urban properties that occur in any act of transfer.
But there are times when, even if a transfer occurs (sale, donation, inheritance, corporate contribution), there is no increase in value, and the payment of the municipal capital gain had to be made and was required by the local administration.
The claim for municipal capital gains
In one of these rulings, the Constitutional Court gave the option of claiming the municipal capital gain in the event that there has not been an increase in value.
For this there were 3 requirements:
- Have presented the tax self-assessment at the town hall.
- Be able to prove that there was no increase in value as a result of the transfer of the property.
- That 4 years have not passed since the self-assessment and voluntary payment of the tax.
The problem with the return of what was unduly paid as municipal capital gains in cases of final settlements is that there was no way to obtain an ex officio review of these settlements.
The jurisprudential doctrine until now had been considering that this declaration of unconstitutionality could not affect firm and consented liquidation acts.
All the rulings of the Constitutional Court on this issue have caused the Supreme Court to rule, clarifying the criteria to be followed.
Changes in municipal capital gains after the Supreme Court ruling
The Supreme Court ruling number 338/2024 has declared that, from now on, unduly paid municipal capital gains may also be claimed in the case of final resolutions, that is, when all the available deadlines to appeal the self-assessment or the settlement.
Until now, the final resolutions were outside the possibility of a claim, but the Supreme Court has considered that the constitutional rights of taxpayers were being violated and that the nullity derived from a declaration of unconstitutionality, unless the Constitutional Court expressly says Otherwise, they occur ex tunc, that is, with retroactive effect, from the origin, as if the null norm had never existed.
How to claim municipal capital gains
The requirement of non-finality of the resolution has disappeared.
The Supreme Court declares that it will be possible to claim for nullity of the legal provision, what it achieves is a unification of doctrine, and all administrations must have a single way of acting.
Regarding the way to declare the act null and void and, therefore, claim the unduly paid municipal capital gains in the case of final resolutions, the same article establishes two possible ways to start the procedure:
By the administration itself.
On the part of the interested party.
According to the February ruling of the Supreme Court, the final settlements for capital gains that taxpayers were forced to pay in these cases, in which there was no increase in the value of the land, are null and void.
Tips to avoid problems with municipal capital gains
To avoid future complications with municipal capital gains, it is recommended:
Carry out a prior appraisal of the property before the transfer to know if there has been a real increase in value.
Present all the required documentation at the town hall to avoid errors in the self-assessment.
Consult with a specialized lawyer.
CONCLUSION
In conclusion, this ruling of the supreme court gives the possibility of requesting the corresponding return of the amounts, as well as their interest, as long as the land has not experienced an increase in value.
At Toscano Lex, we are specialists in family law and criminal law, which allows us to offer a comprehensive approach to resolve any case related to municipal capital gains.
We will offer you guidance on your rights and assist you in protecting your interests throughout the process.
Telephone: +34 951 20 45 95
Email: info@toscanolex.es
Website: www.toscanolex.es
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