The following is taken from an article in the Sur newspaper regarding Plusvalia Tax, which as far as I know is levied by the Town Hall on the increase in value of property when it is transferred or sold. I think that by law this tax is payable by the seller, however sometimes the buyer ends up paying it!
The TSJA finds in favor of the taxpayer and annuls the goodwill when there are sales without benefit
The TSJA's first ruling on this matter gives hope to the taxpayer. “SUR”
The highest court in Andalusia is aligned with the position of the higher courts of other communities such as Catalonia, Valencia, Madrid or La Rioja
17 February 2017 10: 54
The Supreme Court of Justice of Andalusia (TSJA) has added to the position already set by the highest judicial bodies of other autonomous communities regarding the Tax on Increasing Value of Urban Land (IIVTNU), better known as surplus value : If there is no profit in the sale of a property, there is no taxable event that justifies the collection of the tax.
This is the thesis that supports the first sentence issued by the TSJA on this matter, which therefore gives reason to the taxpayer, declaring the tax unfair when a property is sold at a price lower than the one bought. This is a long awaited decision by the hundreds of people in Malaga who are waiting to claim the annulment of surplus value following rulings like the one that recently gave benefit to a neighbor of Fuengirola and condemned this town council to return the almost 5,000 euros which it charged him as a IIVTNU.
Curiously, in that judgment, dated December 21, 2016, the Court of Contentious-Administrative Number 1 of Malaga cited arguments drawn from opinions of the higher courts of justice of Catalonia or Valencia, but not of Andalusia, despite the fact that by they had already pronounced on surplus value. In fact, the Administrative Court of the TSJA issued its first ruling on this controversial municipal tax on September 15 last year, but has not transcended until now.
This newspaper has had access to the opinion of the TSJA, which dismisses an appeal brought by the Provincial Agency for Economic and Fiscal Assistance of the Provincial Council of Seville after being convicted by a court of first instance to return the surplus value collected to a company representing the City Of San Juan de Aznalfarache. The company had had to face a tax bill of 185,025 euros after selling land, despite the fact that it had lost much of its value: it had cost 14.2 million euros in 2006 and had sold it for 3 , 5 million. The Andalusian court accepts, like the court of instance, the argument of the taxpayer: in the absence of a real increase in the value of the land, the taxable event that results in the collection of the tax does not occur.
«There is no taxable event»
The TSJA cites the judgments of the homologous courts of Catalonia, Valencia and Madrid that have already declared illegal the collection of surplus value when the seller suffers a loss, concluding: "We share the same criteria". And, denying to the Diputación de Sevilla the argument that the Ley de Haciendas Locales thus regulates the tax, concluding: "The taxable event was not given, reason why the resource of appeal must be dismissed".
Some judges say that the formula is unfair even when there is an increase in value
In 2010, a retired mathematician from Cuenca lodged an appeal before a court to request the annulment of the supplemental assessment of the surtax value that his city council had sent him. He argued that the formula used by the consistory - in fact, all consistories - to calculate the tax was incorrect, since it collected the increase of value of the soil in future years and not passed, resulting in the taxpayer having to pay between 30% and 40% more than he should. Not only the judge gave the reason, but the sentence was confirmed by the High Court of Castilla-La Mancha. Thus was born a way to resort to surplus value in cases where there is profit in the sale. In fact, recently another court in Madrid has followed this criterion, giving benefit to a taxpayer who used the argument of the mathematician of Cuenca.
The importance of this decision of the highest court in Andalusia is "capital", according to Joaquín López Avellaneda, lawyer of the firm Cuatrecasas, which is representing many clients, both companies and individuals, in resources of surplus value. And it is that the opinion not only marks the position that will follow the TSJA in the next cases that arrive on this subject. It will also have a decisive influence on the judgments of the Andalusian administrative and administrative courts. In addition, it will certainly work as a spur to taxpayers who are considering going to court.
"We are dealing with a matter that affects many individuals, but also companies. Goodwill is not only paid when a property is sold, but also in inheritance or even in corporate reorganizations: if a company transfers a land to a subsidiary and it is not from the same branch of activity, the tax must be paid », explains Lopez Avellaneda. The question raised by many jurists and the affected ones is: does it make sense to maintain a system of calculating a tax that is being declared illegal by more and more courts? So far, the Ministry of Finance has not said anything about it, although it will have to do so if the Constitutional Court declares that surplus value, as it is raised, violates Article 31 of the Constitution, which enshrines the principle of economic capacity.