The Supreme Court has established a doctrine and restricted the possibility of claiming municipal capital gains: it closes the door to all taxpayers who have not previously appealed The constitutional ruling of October 26, 2021 declaring the method of calculating the tax unconstitutional. The decision was issued by Division II of the Third Chamber with a presentation by Judge Rafael Toledano.
The Constitutional Court, in its 2021 ruling, has already decided that Only taxpayers who filed an appeal before the judgment date can claim. This, moreover, was published several days earlier than in The official state newsletter (BoE) – on 9 November, while the judgment was dated 26 October – has led to limbo for claims purposes. The ball ended up in the court of the Supreme Court, which analyzed the scope and basis of the Constitutional Court’s power to determine the temporary effects of rulings declaring rules unconstitutional.
The specific case decided by the Supreme Court, according to a brief issued Friday, refers to an appeal by the Pontevedra Regional Council to a controversial administrative court ruling that overturned a capital gains tax estimate, “in contravention of the Constitutional Court’s decision to limit the temporary effects of declaring the rules of that tax unconstitutional.” The Supreme Court upheld the appeal, affirming that a tax estimate that was not appealed before the declaration of unconstitutionality was declared a consolidated situation because the Constitutional Court declared it in a 2021 ruling.
The ruling notes that the Statute of the Constitutional Court expressly provides that the ruling may be published before it appears in the Bank of England. It concludes that “the delimitation of the uniform limits of situations as of the date of pronouncement of the judgment is a decision of the Constitutional Court that is in accordance with it only, within the framework of exercising its powers and responsibilities,” and that is why judges and courts, as well as public authorities in general, remain committed and must respect and apply the said limitation of effects on their own terms.
The Supreme Court justices make it clear, however, that in these cases tax assessments can be set aside because of the application of other unconstitutional provisions in which the Constitutional Court has not limited the temporary effects of its decision, such as cases of transfer assessments in which there was no gain, or When the tax is expropriation because it absorbs all the profit, In addition to any reason other than a declaration of unconstitutionality.
With this judicial decision, the criteria are set in a matter that has been resolved in a different way in different courts and administrative tribunals, in cases of taxpayers who were within the term to appeal liquidation for capital gains on the date of the declaration of unconstitutionality, but whose appeal has not yet been formalized.
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