B Law & Tax
11 October 2023

Tax advisor: The General Directorate of Taxes addresses Transfer Tax and Stamp Duty (ITPAJD)in the case of property allocations in public auctions

The Directorate-General of Taxes, in various binding consultations such as V1867-23 of June 27, V0543-22 of March 9, or V2302-23 of August 1, has indicated that in the sales of real estate properties that have the reference value established in the regulations governing the real estate cadastre and are carried out through public auctions, notarial acts, judicial processes, or administrative procedures, the taxable base will be calculated in accordance with the provisions of Article 10.2 of the Consolidated Text Transfer Tax and Stamp Duty Act (TRLITPAJD). Therefore, the taxable base will be the reference value provided for in the regulations governing the real estate cadastre on the date on which the tax becomes due, unless the value declared by the interested parties for the real estate property, the agreed price, or both amounts are higher than the reference value. In that case, the highest of these amounts will be used as the taxable base.

If there is no reference value available or if the Directorate-General of the Cadastre cannot certify it, the general rule will apply in which the taxable base of the tax will be the higher of the following amounts:

  1. The value declared by the parties involved.
  2. The agreed price or consideration.
  3.  The market value.

The revision of Article 10 of Royal Legislative Decree 1/1993, of September 24, which approves the Consolidated Text Transfer Tax and Stamp Duty Act (TRLITPAJD)has limited the application of Article 39 of the Property Transfer Tax and Stamp Duty Regulation (RITPAJD), approved by Royal Decree 828/1995, of May 29. This is because the mentioned article is not directly applicable in the case of property transfers through public auctions, notarial acts, judicial procedures, or administrative processes.

The article 39 of Property Transfer Tax and Stamp Duty Regulation (RITPAJD)  establishes the following:

“In transactions carried out through public auction, notarial, judicial, or administrative processes, the basis for calculation shall be the acquisition value, provided that it consists of a price in money set by law or determined by authorities or qualified officials for that purpose. In other cases, the acquisition value shall be used as the basis when the result of the verification is not higher.”

However, the Supreme Court judgment in appeal 532/1995, dated November 3, 1997, ECLI:ES:TS:1997:6516, removed the phrase “provided that it consists of a price in money or determined by authorities or officials qualified for that purpose. In other cases, the acquisition value shall be used as the basis when the result of the verification is not higher.” Therefore, according to Article 39 of the Property Transfer Tax and Stamp Duty Regulation (RITPAJD), the taxable base for the Tax in the case of an auction will be the acquisition value.

Article 10 of the Consolidated Text Transfer Tax and Stamp Duty Act (TRLITPAJD)has been amended by Article Six. Two of Law 11/2021, which has reformed the regulation of the taxable base of the onerous property transfer tax . Thus, Article 10 of the Consolidated Text Transfer Tax and Stamp Duty Act (TRLITPAJD) establishes:

“1. The taxable base is constituted by the value of the property transferred or the right created or assigned. Only charges that decrease the value of the properties shall be deductible, but not the debts even if they are guaranteed by a pledge or mortgage.

For the purposes of this tax, unless one of the rules contained in the following sections of this article or in the following articles is applicable, the value of the properties and rights shall be considered their market value. However, if the value declared by the interested parties, the agreed price, or both are higher than the market value, the higher of these amounts shall be taken as the taxable base.

Market value shall be understood as the most probable price at which a property could be sold between independent parties, free of charges.

  1. In the case of real estate, its value shall be the reference value provided for in the regulations governing the real estate cadastre as of the date of the tax event.

However, if the value of the real estate declared by the interested parties, the agreed price, or both are higher than its reference value, the higher of these amounts shall be taken as the taxable base.

When there is no reference value or it cannot be certified by the General Directorate of Cadastre, the taxable base, without prejudice to administrative verification, shall be the higher of the following amounts: the value declared by the interested parties, the agreed price, or the market value.”

The General Directorate of Taxes has indicated that Article 39 of the Property Transfer Tax and Stamp Duty Regulation (RITPAJD) establishes a rule applicable to the transfer of all types of property made through public auction, notary, judicial, or administrative proceedings. This rule determines that, in such cases, the taxable base shall be determined with reference to the acquisition value. The DGT argues that this rule does not appear to conflict with the general rule set forth in Article 10.1 of the Consolidated Text Transfer Tax and Stamp Duty Act (TRLITPAJD), which states that the taxable base shall be the market value of the property, understood as the most likely price at which the property could be sold between independent parties, free of encumbrances. The DGT maintains that the acquisition value in a public auction, notarial, judicial, or administrative proceeding, conducted in accordance with the law, can be considered as the price agreed upon between independent parties. Therefore, it considers that Article 39 of the Property Transfer Tax and Stamp Duty Regulation (RITPAJD) has not lost its validity despite the new wording of Article 10 of the Consolidated Text Transfer Tax and Stamp Duty Act (TRLITPAJD) introduced by Law 11/2021, although its scope of application has been reduced.

In this case, the general principle of law that states “lex posterior generalis non derogat (legi) priori speciali” (a later law of a general nature does not derogate from an earlier law of a special nature) does not apply, as this principle requires that the two conflicting norms have the same rank, which is not the case here since Article 39 is a regulatory rule approved by decree, while the new wording of Article 10 was approved by law. Instead, the principle of hierarchical normativity is applied, which establishes that the superior norm prevails over the inferior one. Furthermore, the rule of Article 10.2 is also considered a special rule concerning real estate, in contrast to the general rule of Article 10.1 that applies to all types of assets.

 

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