The Court of Cassation determined the criteria for the application of the judges and courts of the Supreme Court. Declaration of absolute unconstitutionality of tax on increase in land valueKnown as capital gains, which limits the temporary effects of the provision exceeding this rate by reviewing the tax base used by the Constitutional Court in 2021.
The Supreme Court considered the appeal and decided. Pontevedra County Council It was filed against the contentious administrative court decision annulling the tax base for capital gains, in violation of the Constitutional Court’s decision to limit the temporary effects of the declaration of the unconstitutionality of the rules of the tax in question.
The Supreme Court agrees with the attorney and declares that A tax settlement that is not appealed before the declaration of unconstitutionality is known is a consolidated case. because the Constitutional Court declared so in its decision dated October 26, 2021. In such a consolidated situation, the tax is not affected by the declaration of unconstitutionality and it is not possible to cancel it.
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The Third Chamber of the Court of Cassation examines the scope and basis of the Constitutional Court’s power to determine the temporary effects of penalties declaring norms unconstitutional. It points out that the law governing the court of guarantee clearly allows for the decision to be published prior to its mandatory publication by the BOE, and concludes that “the limitation of consolidated situations as of this date of the decision is solely a corresponding decision of the Constitutional Court within the exercise of its powers and responsibilities”. judges and courts, and public powers in general, should respect the limitation of such influence and apply it on their own terms..
The Supreme Court judges have clarified that in these cases, it is possible to annul tax assessments only by applying other unconstitutional decisions of the Constitutional Court. It did not limit the temporary effects of the decision, such as the liquidation of real estate transfers where there was no profit, or the tax being confiscated because it absorbed all profits.in addition to any reason other than the declaration that the last sentence on this matter is unconstitutional.
With this Judgment decision In the cases of taxpayers who are within the time limit to object to the liquidation of capital gains at the date of the declaration of unconstitutionality, but have not yet formalized their objection, a criterion is established in an issue that is decided differently in different courts and in contentious-administrative courts.
Source: Informacion
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