11 Oct Protected by the Supreme Court, fathers and mothers may request the refund of their deducted amounts.

“Maternity grants are tax exempt”. It is the legal doctrine established by the Supreme Court in the judgment of second Section of the Administrative Disputes Hall, on the 3^rd of October. In this way, it ratifies the failure of the Superior Court of Madrid in 2017, which had been appealed by the State Lawyer, who had told that the function of maternity allowance is none other than replacing the normal remuneration of the worker, which is not tax exempt, so the other one either should not be.

However, the high court has considered, as it is reflected in the third legal basis of the judgment, that the benefit may be incardinated in the case referred to in the third paragraph letter h of Article 7 of the personal income tax law, which establishes that: “similarly, other public benefits for birth, childbirth or multiple adoption, adoption, dependent children and orphanage will be exempt. ”

The Supreme Court has based its arguments, firstly, in the Explanatory Memorandum of 62/2003 Law, which is about fiscal, administrative and social measures, which has introduced the exemption in the Income Tax Act measures. That law shows that the exemption is not limited to the benefits granted by the autonomous communities or local authorities, but it affects all, without distinguishing the public institution which is perceived from. In addition, it adds that the tax payment exemption includes the maternity benefit and not only those of birth, multiple birth, adoption and dependent child. It modifies the judgement maintained until now by the Tax Agency and the Central Economic-Administrative Court.

Maternity concession is a subsidy managed by the Social Security that tries to compensate for loss of income because of the birth of a child, leaving the employment contract suspended during that period of time. It is the systematic interpretation on which the decision of the Supreme Court is based, against the foundation on which the State’s lawyer supported his appeal. That is the interpretation that the Tax Agency must apply when resolving the procedures, claims and resources in progress or that are presented in the future.

Protected by this ruling, the fathers and mothers who requested the mentioned benefit during the fiscal years of 2014, 2015, 2016 and 2017 may request the return of the IRPF that was deducted from the amounts, showing a written request for rectification of self-assessment and return of undue income for the year in which the benefit was received.

Although from technicians of finance union are advised to wait for a general procedure for processing, it can be made through the website of the Tax Agency, for what will be necessary to locate the amount of the benefit, which may also be consulted in the Treasury.

The request for rectification can be requested before four years from the day following the deadline for submission of the claimed claim, or from the day following the filing of the return, if it was filed late; it is estimated that the term for the resolution of the requests is about six months.

For example, for those workers who received the benefit in 2015, the term will end on June 30, 2020, when four years have elapsed since the 2015 income was presented: in 2016.

Based on the case of Ana, the mother from Madrid to whom the ruling of the Supreme Court ruling has proved right, any worker whose children were born as of 2014, because the doctrine is applicable to both maternity and paternity benefits, have the right to demand the return of the amounts withheld.

The amount is variable depending on the contribution base. Technicians remember that not all cases in which they have received maternity benefits entail the possibility of obtaining the return of amounts, and that women who received payroll below 14,000 euros per year will not be benefited just by absence of retentions. As well as those that have already been returned, except for the mothers to whom the declaration was found to enter.

For example, let us study the aforementioned case of the worker who has given birth in 2015, who has received the benefit that same year and whose deadline for requesting a refund ends in 2020, because the declaration has been presented in 2016.

That mother receives a salary of about 16,500 euros, approximately 1,400 euros per month. The maternity benefit in her case has amounted to 5,475 euros, which are the full income received during the low. In this case, the retention is 560 euros, which must be returned.

However, according to calculations by the Consumers and Users Organization, for a provision of this amount in 2015, the refund, once increased by interest, may exceed 1,000 euros.

In the case of requests that are considered pertinent, the Treasury will proceed to rectify the presented declaration and will return the amounts unduly entered, increased by the corresponding interests. Although, in case the taxpayer sees rejected the refund of undue income, it will be able to present an economic – administrative reclamation, being able to go, in last place, to the administrative contentious courts, attended of lawyer and solicitor, if they did not see satisfied his rights either.

Raquel Escolano Asún
Lawyer