The Constitutional endorses the Government's decision to modify the capital gains tax via royal decree

He says that if it had not been approved, it would not have been possible for the municipalities to continue collecting the tax

MADRID, 9 Mar. (EUROPA PRESS) -

The Constitutional Court (TC) has endorsed by majority the Government's decision to modify the capital gains tax system via Royal Decree-Law in November 2021. The magistrates have dismissed the unconstitutionality appeal filed by the PP deputies, considering it justified that The Executive will use the urgent route to regulate said tax.

As reported this Thursday by the guarantee court, the Plenary has rejected the appeal of the 'popular' against the Royal Decree-Law by which the consolidated text of the Local Treasury Regulating Law is adapted to the recent jurisprudence established by the Constitutional Court itself in November 2021 regarding the Tax on the Increase in Value of Urban Land, also known as capital gains tax.

The magistrates have supported the presentation written by the president of the court, Cándido Conde-Pumpido, on whom the appeal presented by those of the PP had fallen.

It should be remembered that the TC annulled the capital gains tax after issuing three sentences in this regard: one in which it concluded that if there was no profit, the tax could not be demanded; a second in which he pointed out that even with a profit, if it was less than the amount of the tax, it was not constitutional either; and a third, issued in 2021, in which it declares the capital gains calculation system unconstitutional.

After this last sentence was handed down, the Government issued a Royal Decree-Law in which it established a new regulation of capital gains tax. The deputies of the PP presented an appeal against said text, considering that this issue should not have been resolved urgently through the figure of a Royal Decree-Law.

Specifically, the leaders considered that the entire text incurred a double violation: it lacked the enabling budget of the extraordinary and urgent need; and it infringed the material limits that are constitutionally imposed on this type of norms.

The guarantee court has declared the constitutionality of said measure because, firstly, it appreciates in the approved measures the required connection of meaning with the situation of extraordinary and urgent need, with an explicit and reasoned problematic economic situation.

The Constitutional Court has concluded that the challenged precepts were intended to fill the regulatory vacuum produced by the declaration of unconstitutionality carried out by the sentence issued in 2021 and, if the questioned regulation had not been approved, it would not have been possible to continue collecting the tax for part of local entities.

Secondly, the court has not understood that the material limits established by the Constitution for the use of the decree-law in tax matters have been violated.

Thus, it has considered that in view of the position of the tax in the Spanish tax system, the challenged regulation -although it modifies the tax base of this local tax-- has not substantially altered the position of those obliged to contribute according to their economic capacity in the the entire tax system.

For this reason, it has defended that the text has not affected the essence of the constitutional duty to contribute to the maintenance of public expenses that the Constitution enunciates.

Judge Enrique Arnaldo and Judge Concepción Espejel voted against it, understanding that the second reason for unconstitutionality should have been considered because, in their opinion, Decree-Law 26/2021 does not respect the material limits that the Decree-Law has in terms of tax, by directly affecting the duty to contribute to sustaining public spending.