The ruling of the Constitutional Court 185/2021 of October 26, 2021 has led to the declaration of unconstitutionality and total nullity of Arts. 107.1, 107.2 a) and 110.4 of the TRLHL, considering that the objective calculation method of the Tax included in its Art. 107 is unconstitutional, regardless of whether or not there is an increase in the value of the land or whether it is greater or less than the quota resulting, is NULL.
Therefore, the maintenance of the current objective and mandatory system for determining the tax base, as it is alien to the reality of the real estate market and the economic crisis and, therefore, outside the economic capacity taxed by the tax and demonstrated by The taxpayer violates the principle of economic capacity as a taxation criterion (art. 31.1 CE).
It is therefore determined that there is no obligation to present self-assessment for the Tax, since the taxpayer will not be able to effectively establish the tax debt. We must take into account with respect to the date of the ruling established on October 26, 2021 that its full legal effect will be from November 25, 2021 (Art. 38.1 LOTC), date of its publication in the BOE. .
Those taxpayers who, prior to October 26, 2021, have submitted a self-assessment of the capital gain and paid the resulting fee or have been issued a settlement for the tax and have not proceeded, again prior to October 26, 2021, will not be able to request a refund of the fees paid. said date, to initiate a self-assessment rectification procedure (article 120.3 of the LGT) or an economic-administrative appeal or claim process, if we stick to the literal interpretation of the ruling.
Neither do those taxpayers who, having initiated any of the procedures, have not continued with it and the deadline to continue it has expired. In these cases the settlement must be considered final through administrative means and, therefore, they will not be able to request the return of undue income or the cancellation of the self-assessment. And finally, taxpayers who have not started the procedure prior to October 26, 2021.
In what cases will taxpayers be able to claim amounts improperly paid?
When the taxpayer is immersed in an appeal or claim procedure or has requested the rectification of their self-assessment prior to October 26, 2021, they may request a refund of the amounts paid or required by the City Council, in addition, if their appeal may continue the claim procedure both administratively and judicially.
On November 10, 2021, the regulatory modification came into force so that municipal capital gains are legal and constitutional. Specifically, Royal Decree-Law 26/2021, of November 8, adapts the tax to successive declarations of unconstitutionality. The rule does not have retroactive effects as established in its Third Final Provision.
