Unconstitutionality of the Plusvalía Municipal: The TC pronounces
After the judgments of the High Court SSTC 26/2017 of 16 February and 37/2017 of 1 March, which were pronounced on municipal surplus value in the foral territories of Guipúzcoa and Álava, the Constitutional Court It has been pronounced with respect to the “plusvalía municipal” in the state scope, that is to say that it will be applicable to all towns subject to the state legislation (excluding, therefore, Basque Country and Navarra).
As expected, the Court ruled declaring the unconstitutionality of “plusvalía municipal”, but only in the case where there has been no real increase in the value of land, that is, when there has been a loss.
This resolution, therefore, raises several doubts.
How can I recover the “plusvalía municipal” already paid?
In our opinion, a request for recovering the income relying on this Court order (which will be final once published in the BOE) may be requested, if not more than 4 years have elapsed since the tax settlement. Likewise, the proof of the effective decrease of the value of the land rests with the taxpayer, for which it will be necessary to provide the deeds of purchase and sale, and if necessary, provide value appraisals.
In the event that the “plusvalía municipal” was filed ans paid due to a donation or inheritance, how do I calculate if there has been loss?
In the case of donations will have to be the calculation of the equity gain made by the donor in his income tax return, if there has been profit, there will be nothing to do. Likewise, in the case of an inheritance, we will follow the same process calculating the so-called “gain of the deceased”, that is, considering the inheritance of the property as if it were a sale, to see if there is an increase in value or not. However in these cases almost always a profit is computed, so the possibility of requesting returns will be residual.
If I sell a property from now on, do I have to continue to file the “plusvalía municipal”?
Yes. Until the legislator does not modify the Local Finance Act in the sense established by the Constitutional Court, the “plusvalía municipal” must be liquidated. Once filed the return, if its payment is made, can request the return of the payment. In case you do not want to pay, if you submit an application for deferral or split, you must also request the unlawful payment of the settlement.
If you want to read the Judgment issued by the Constitutional Court, you can download it here:
To know exactly if you can request the undue income or want more information about it, you can contact GM Tax.