B Law & Tax
10 July 2023

Tax advisor: The jumping error in the Inheritance and Gift Tax (ISD) does not occur when a reduction is not applied, since there has not been an increase in the tax amount that exceeds the established base.

The objective of this appeal, from the perspective of the objective interest in the formation of case law, is to determine, when interpreting article 56.3 of the General Tax Act (LGT), what should be the criterion for determining the existence of the leap error. This is done either by taking as a reference the taxable base or, on the contrary, considering the taxable base of the tax, without the progressivity of the tax or the presence of tax reductions or benefits that differentiate the taxable base from the taxable base affecting this debate.

In the case of an increase in the taxable base of 165,147.51 euros, there is an increase in the gross tax liability of 24,234.69 euros, which disproves the contrary assertion that there is an increase in the tax liability greater than that which occurs in the taxable base, and, therefore, a leap error. Article 22 of the Inheritance and Gift Tax Act (ISD) contains a specific rule to correct the leap error: “When the difference between the tax liability obtained by applying the corresponding multiplier coefficient and that which would result from applying to the same full tax liability the immediately lower multiplier coefficient is greater than that which exists between the amount of the pre-existing estate taken into account for the liquidation and the maximum amount of the pre-existing estate tranche that would motivate the application of the aforementioned lower multiplier coefficient, that shall be reduced by the amount of the excess.”

However, in this case, we do not find ourselves in the situation provided for in article 22 of the ISD Act, but before the application of a specific tax reduction to which the appellants are not entitled because the taxable base, according to the legal definition, exceeds 175,000 euros. According to our legal interpretation to resolve the dispute, it is not relevant to establish a specific case law doctrine, since the question raised in the admission of the case, which consists of determining, when interpreting article 56.3 of the LGT, what should be the criterion to determine the existence of the leap error, already presupposes the application of the leap error to determine which parameters or magnitudes should be considered. Given this assumption, whether the taxable base or the taxable base is taken as a reference, in figures that are clear and have not been the subject of controversy, except for the interpretation upheld in cassation, it is determined in any case the inapplicability of Article 56. 3 of the LGT due to the lack of the necessary fact for said technical-legal mechanism to be applied: there has not been an increase in the quota that exceeds the amount of the base, either the taxable or the liquidable base, because the hypothesis raised by the appellants starts from the conceptual error of subtracting from the taxable base the sum of 175,000 euros, which they erroneously consider as a kind of minimum exemption not subject to taxation.

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