Tax Advisor: All you need to know about the Temporary Solidarity Tax on Large Fortunes

Several unconstitutionality appeals filed against the Temporary Solidarity Tax on Large Fortunes (ITSGF) have been rejected by the Constitutional Court. Initially, challenges were admitted, including those filed by the Government Council of Madrid (rec. n.º 616/2023), Andalusia (rec. n.º 1258/2023), Xunta de Galicia (rec. n.º 1951/2023), Madrid Assembly (rec. n.º 1922/2023), and the Government Council of the Autonomous Community of the Region of Murcia (rec. n.º 1993/2023). The issued judgments dismiss the arguments presented by the appellants and include dissenting votes.

Regarding the ITSGF’s Model 718, its submission is governed by the terms and conditions set forth in Order HFP/587/2023, of June 9, published in the BOE on June 12, 2023. The deadline for submitting the tax spans from July 1 to July 31 of the following year after the accrual, with the possibility of direct debit between July 1 and July 26.

It is noteworthy that the ITSGF was established by Law 38/2022, of December 27, on a temporary basis, with a duration of two years. This tax will be applicable during the first two fiscal years after its entry into force. However, a review clause is contemplated at the end of its validity period to evaluate the results and consider its maintenance or abolition.

Law 38/2022, in force since December 29, 2022, established the Temporary Solidarity Tax on Large Fortunes (ITSGF). The revenue is allocated to the Public Treasury to support policies for the vulnerable. This tax taxes the net worth of individuals with more than 3,000,000 euros, being direct and personal. It complements the Wealth Tax (IP), allowing deductions to avoid double taxation. It applies throughout the Spanish territory, excluding the foral regimes in the Basque Country and Navarre, and cannot be transferred to autonomous communities. The State assumes responsibilities for the management, liquidation, and review of the tax.

Definition

The Temporary Solidarity Tax on Large Fortunes (ITSGF) is a temporary and revisable measure. Initially, it will apply in the fiscal years 2022 and 2023, starting from its entry into force on December 29, 2022, according to Law 38/2022. However, Article 3.Twenty-Three of said law contemplates the evaluation of results at the end of its validity period, with the possibility of proposing its maintenance or abolition.

Elements of the Temporary Solidarity Tax on Large Fortunes

The Temporary Solidarity Tax on Large Fortunes (ITSGF) shares similarities with the Wealth Tax in terms of territorial scope, exemptions, taxable subjects, taxable and liquidable bases, accrual, tax rates, and limit of the full fee. The main difference is that the ITSGF taxes only net assets exceeding 3,000,000 euros.

The taxable event of the ITSGF occurs when the taxable person has a net worth exceeding 3,000,000 euros at the time of accrual. In practice:

The net worth of the individual encompasses all assets and economic rights of which they are the owner, deducting charges, encumbrances, debts, and personal obligations that decrease their value.

It is presumed that the assets and rights that belonged to the taxable person in the previous accrual are part of the net worth, unless there is evidence of transmission or patrimonial loss.

The taxable persons of the ITSGF coincide with those of the Wealth Tax, as established by Law 19/1991, on the Wealth Tax (LIP).

In the case of taxable persons not resident in Spain, Article 3.Six of Law 38/2022, of December 27, establishes rules to designate a representative in Spain who complies with the obligations of the ITSGF. In summary, non-residents must designate an individual or legal entity residing in Spain before the tax declaration deadline, unless there is mutual assistance legislation in the exchange of tax information and collection. This designation must be communicated to the competent office, attaching the express acceptance of the representative.

The establishment of ownership of assets and rights in the Temporary Solidarity Tax on Large Fortunes (ITSGF) follows rules of legal ownership based on evidence provided by taxable persons or discovered by the Administration, applying the rules of the Wealth Tax Law (LIP).

The ITSGF accrues on December 31 of each year, affecting the net worth of the taxable person on that date. Assets and rights exempt from the Wealth Tax, according to the LIP, such as assets of the Spanish Historical Heritage, art objects, economic content rights of certain social security systems, assets necessary for business or professional activity, among others listed in Article 4 of the LIP

Limit of the Full Fee and Deductions: Temporary Solidarity Tax on Large Fortunes

The full fee of the Temporary Solidarity Tax on Large Fortunes (ITSGF), combined with the fees of the Personal Income Tax (IRPF) and the Wealth Tax (IP), must not exceed 60% of the sum of the taxable bases of the ITSGF for taxable persons with personal liability. If this limit is exceeded, the ITSGF fee will be reduced to reach this limit, with the reduction not exceeding 80%.

For taxable persons with personal liability, the ITSGF allows a deduction for taxes paid abroad, in accordance with the provisions of the Wealth Tax Law (LIP). A bonus is also applied in Ceuta and Melilla if among the computed assets or rights, there is any located or to be exercised in these regions. In addition, the taxable person can deduct the Wealth Tax fee for the exercise effectively paid.

Will community property respond to the ITSGF tax liability?

Yes, according to section Sixteen of Article 3 of Law 38/2022, community property will directly respond to the Tax Administration for the tax debts generated by this tax.

Declaration and Payment of the Tax:

Taxable persons are obliged to submit a declaration, make the self-assessment, and, if necessary, pay the tax debt following the established regulations. Payment can be made by delivering assets that are part of the Spanish historical heritage registered in the General Inventory of Movable Property or in the General Registry of Cultural Heritage Assets, according to the Law of Spanish Historical Heritage.

Those taxable persons whose tax liability results in payment must submit a declaration, while those who pay directly to the State will not have this obligation, unless the tax liability for this tax results in payment. The submission will comply with the provisions of the Ministry of Finance and Public Function, which may also establish conditions for electronic submission.

Taxable persons must complete all relevant data in the declarations, attach the required documents, and submit them in the designated places.

How will tax offenses in the ITSGF be classified and penalized?

Tax offenses in this tax will be classified and penalized according to the provisions of the General Tax Law (Law 58/2003, of December 17).

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