Tax advisor: The refund of the undue income of the IVMDH is imputed to the year in which the payment of the tax was made

The Supreme Court of the Principality of Asturias, in its ruling of April 12, 2023, examines the correct temporal imputation of the refund of the IVMDDH undue income. The plaintiff argues that such refund should be imputed in the years in which the undue payment was made, not in the 2015 corporate income tax return, despite the fact that refunds were obtained in that year. The court determines that the amounts in dispute are undue income generated fiscally at the time of their occurrence, regardless of the fiscal year in which the actual refund is made, thus respecting their correspondence with expenses.

In this process, it is an undue income derived from the incompatibility of the Spanish regulation of the IVMDH with European Union Law, so the temporary imputation solution is based on the doctrine of the Supreme Court, both in cases of declaration of unconstitutionality of a legal rule and in the judgments of the Court of Justice of the European Union that establish the incompatibility of an internal rule of a State with European law.

In conclusion, due to the declaration of non-conformity of the aforementioned tax with European Union Law, the refund should not be temporarily imputed in the taxable base of the Corporate Income Tax in the year in which the right to the refund is recognized, as assumed by the Administration, but in the year indicated by the claimant, which refers to the year in which the payment of the tax in question was made.

B Law & Tax International Tax & Legal Advisors.

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