12 Apr THE MODIFICATION OF TAX ON GAINS IN VALUE OF URBAN LAND (PLUSVALÍA)

After having presented the Government Bill for the modification of the Law regulating Local Taxes almost one year ago, with a direct impact on the Tax on the Increase in the Value of Urban Land, popularly known as municipal capital gain, it has started the parliamentary procedure with which the payment of this tax will be canceled when the sale of a property at a loss is made.

Although the Law will come into effect the day after its publication in the Official State Gazette, some of the measures envisaged will be retroactive to the date of entry into force, specifically the case in question. The date from which the new tax will be applied will be on 06/15/2017, coinciding with the publication in the BOE of the ruling of 11/05/2017 of the Constitutional Court that declared unconstitutional and partially annulled the payment of the municipal capital gain. in the transmissions of homes with losses, considering that you can not impose a tax when there has been no economic gain and simply by “the mere ownership of the land for a period of time”.

Consequently, all taxpayers who, from June 15, 2017, would have sold a property for a price lower than the one they purchased and who had been taxed by the municipal capital gain, should, once this proposed law for the summer comes into force. , to receive the return of said tax, since, according to the judgment of the Constitutional Court and the new regulation of the tax, they should not have paid it.

The reform has been agreed by the Ministry of Finance and the Spanish Federation of Municipalities and Provinces (FEMP) to give a quick response to the judgment of the TC stating that “there will be no subjection to the tax on the transmissions of land, with respect to which the passive subject credits the inexistence of increase of value, by difference between the real values ​​of transmission and acquisition of the land “.

It must be borne in mind that the transmission and acquisition values ​​to be valued in onerous transmissions will be those actually paid and recorded in the deeds.

As for free transmissions (inheritances and donations), we will take the values ​​of acquisition and transmission declared in the Inheritance and Donations Tax (which will usually be those recorded in the public deed of inheritance or donation). In both cases, if these values ​​have been subject to verification and the result was higher than declared, the administrative assessment will be taken into account.

On the other hand, the amendment also contemplates the modification of the coefficients that each City Council later establishes to apply to the cadastral value of the land as well as its calculation method. Specifically, if before the coefficient was calculated taking into account periods of five years, from now on, annual periods will be computed, up to a maximum of 20 years. As a counterpart, comment that the new Bill drastically reduced the maximum coefficients, although the Popular Parliamentary Group through a proposal of law slightly raised, but still significantly below the current law.

In addition, the bill proposing the modification of municipal capital gains adds a new Transitory Provision that establishes that municipalities may adapt their tax ordinances within 4 months of the entry into force of the Law. In the period of adaptation to the new regulations, the maximum coefficients foreseen in the new Law will be applied unless the coefficients of the old ordinance that had not yet been modified were more beneficial.

Inés Usón González

Lawyer