B Law & Tax
31 July 2023

Tax advisor: Expanding the discussion on the possible unconstitutionality of Royal Decree-Law 3/2016

The Supreme Court has accepted two appeals in cassation to analyze the conformity with the Constitution of Article 3.1 of Royal Decree-Law 3/2016. This decree establishes tax measures to strengthen public finances and address urgent social issues.

These appeals are filed against rulings of the High Court of Justice of Catalonia, issued on July 29, which rejected the request for rectification of Corporate Tax (IS) returns by two entities. Said entities sought to modify the reversal in fifths of tax impairments deducted in previous years, related to the value of participations in other entities during the years 2016 to 2020. It is worth mentioning that this obligation to reverse the impairments in fifths and increase the IS taxable base was introduced by Royal Decree-Law 3/2016 by amending the sixteenth transitory provision of the IS Law 27/2014.

The High Court of Justice of Catalonia simply rejected the appeals filed by the aforementioned entities, based on the previous order of the Constitutional Court 20/2022, dated January 26, where a question of unconstitutionality related to Royal Decree-Law 3/2016 was inadmissible, solely due to formal issues.

As a result of this decision, the plaintiff entities have filed appeals in cassation. In these appeals, the Supreme Court has admitted their processing and refers, as well as the appellant entities themselves did, to the question of unconstitutionality raised by the Audiencia Nacional. Recently, the Constitutional Court has communicated that it has accepted to process this question of unconstitutionality in its plenary session on July 18.

In the Supreme Court documents, it is indicated that the appellant entities requested the suspension of the proceedings before the SC due to the filing of the aforementioned question of unconstitutionality. The State Attorney did not oppose this request. However, the Admission Section of the SC has decided not to suspend the processing of the appeals at this point in the process, although the possibility is left open that it will wait for the resolution of the unconstitutionality issue before resolving the appeal in the Trial Section, if so determined in the future. In short, the SC has not yet made a final decision on the suspension, and it is expected to know its conclusion on the matter.

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