B Law & Tax
09 May 2023

Tax Advisor: The person obliged to pay the capital gains tax by agreement is entitled to rectification and refund of the undue payment

The appealed judgment establishes that, since there is no case law stating that the fulfillment of a contractual obligation alone legitimizes the ability to appeal before the courts to analyze the merits of a tax assessment, it is necessary to abide by article 33 of the General Collection Regulation. According to this article, if the contractual obligor cannot exercise the same rights as the tax obligor, then the administrative decision of inadmissibility is correct.

Moreover, this regulatory precept cannot regulate the capacity of a third party to act in defense of its interests, especially when these are not opposed to those of the taxpayer. The Supreme Court has already recognized the active procedural capacity that judicially assists those who, without being taxpayers, have assumed the obligation to pay a tax that the Administration has accepted. The inadmissibility of applications in proceedings opened at the request of the interested party gives rise to a fiction of an act that allows the citizen not to remain indefinitely awaiting an act that may not be produced or may arrive too late. Therefore, the person obliged to pay the capital gains tax by virtue of an agreement or contract with the taxpayer has procedural capacity to request the rectification of the tax self-assessment and the refund of any undue payment derived from the same, which our case law recognizes as necessarily prior.

The administration, which has not explicitly responded to the request for rectification of the self-assessment nor to the appeal for reconsideration, cannot later allege in the judicial process the lack of administrative procedural capacity that it did not declare. In any case, the regime of the appeal for reconsideration established in article 14.2 of the Revised Text of Local Treasuries Act does not establish a prohibition of taxes equivalent to that of article 232 of the General Tax Act, which in this case cannot be applied. The ruling of the Constitutional Court 182/2021 has declared the unconstitutionality of the second paragraph of article 107.1.

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