B Law & Tax
27 July 2023

Tax advisor: The Supreme Court considers consolidated the IIVTNU files not challenged until the date of the Constitutional Court ruling 182/2021, without taking into account its publication in the BOE

In a ruling issued on July 12, 2023, the Supreme Court interprets that the intention of the Constitutional Court, according to ruling 182/2021 of October 26, 2021, is to establish the intangibility of consolidated situations as of the date of the ruling, and not that of its publication. In addition, it is clarified that a settlement that is not yet final cannot be challenged, even if the legal deadlines established for this purpose have not elapsed.

The Supreme Court determines that the provisional or definitive liquidations for Tax on the Increase in Value of Urban Land (IIVTNU, or commonly known as ‘plusvalía municipal’) not challenged before the ruling of October 26, 2021, may not be challenged due to the declaration of unconstitutionality in that ruling. Similarly, it will not be possible to request rectification, according to article 120.3 LGT, for self-assessments not yet requested at the time of the ruling. However, it will be possible to challenge settlements that are not final within the time limits established for administrative and contentious-administrative appeals, based on grounds other than the declaration of unconstitutionality, such as previous rulings of the Constitutional Court that invalidated IIVTNU regulations or on any other grounds of challenge.

In this case, the appeal against the IIVTNU settlement was filed after the STC 182/2021 ruling but within the deadline and before its publication in the BOE (20/11/2022). Before, the Constitutional Court annulled the law and restored the previous situation due to unconstitutionality. Establishing prospective effects poses challenges and problems, since these rules are null and void for being contrary to the Constitution, which affects the principle of equality and effective judicial protection. However, the aim is to avoid harm to the public interest and the Treasury, considering the uncertainty of future declarations of unconstitutionality or compatibility with European law.

The problems of unconstitutionality of the rule have been recognized for some time, generating orders and judgments of the Constitutional Court questioning its constitutionality. The Supreme Court also warned about the legal uncertainty created and urged the legislator to regulate the irregular situation, which occurred after Constitutional Court ruling 182/2021.

The prospective ruling raises multiple legal problems and affects the legal certainty and security between the taxpayer and the Treasury. However, it is presumed that it seeks to protect more relevant public interests, although these are not expressly specified in the ruling. Other equally important and fundamental principles are sacrificed to achieve this.

The Supreme Court strictly interprets Constitutional Court ruling 182/2021 and considers as a consolidated situation those settlements that have not been challenged before the date of the ruling. According to the Supreme Court, the will of the Constitutional Court is to ensure the intangibility of these situations from the time of the judgment, not from the publication in the State Official Gazette (BOE).

Although the Constitution and the Constitutional Court Organic Law establish that the effects of the rulings of the Constitutional Court are produced from the date of their publication, the power to delimit intangible situations is a creation of the Constitutional Court itself based on the weighing of the conflicting constitutional principles that require maintaining certain temporary effects of the rule declared unconstitutional.

In the present case, the taxpayer challenged the settlement in reinstatement, arguing the existence of a disability, which was rejected by the Administration and confirmed in court.

The City Council considered that the situation was consolidated, but ruled on the possible disability, rejecting its existence. A settlement that is not final cannot be challenged, even if the legal deadlines have not yet passed. Nor can it be challenged based on the declaration of a consolidated situation before the publication of the Constitutional Court’s ruling in the BOE, which is when the effects are produced according to article 164 of the Constitution.

The taxpayer cannot challenge the liquidation based on the unconstitutionality of the precepts, as now allowed by Constitutional Court ruling 182/2021, but can do so on other grounds of unconstitutionality, such as the presence of a handicap or any other reason provided for in the legal system for its nullity or annulment. However, the appealed party does not insist on this point, so the thesis of the City Council is accepted, which argues that there was no disability to apply the thesis of non-confiscation.

B Law & Tax International Tax & Legal Advisors.

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