The Constitutional Court ("TC") has admitted an appeal of unconstitutionality filed by the Popular Parliamentary Group on two grounds:
On the one hand, the possible confiscatory nature of the tax. The 2021 Budget Law increased the maximum marginal rate of the tax by 1%, thus increasing the state rate from 2.5% to 3.5%. This modification has served as a basis for raising the possible confiscatory nature of the tax. This issue would not affect taxpayers with tax residence in Catalonia, since the unconstitutionality, if declared, would be limited to the state rate of the tax introduced in the Budget Law for 2021, and therefore would only affect the autonomous communities that have not approved their own rate of the tax and/or non-resident citizens who are taxed applying the state rate.
On the other hand, the conversion of a tax from temporary to permanent, by means of an improper regulation. This conduct is prohibited by article 134 of the Spanish Constitution, which in its seventh paragraph establishes the prohibition to create new taxes by means of a Budget Law. If the TC declares unconstitutional the legislative technique that has converted a temporary tax into a definitive tax by declaring unconstitutional the suppression of the 100% rebate of the tax, said rebate would be in force and consequently the total refund of the liquidations corresponding to the Wealth Tax practiced in the fiscal years 2021 and following years should be made.
In view of the above, it is relevant to consider whether or not to request the rectification of the self-assessments of the tax filed in 2021 and 2022. Everything suggests that the TC will maintain the criterion used in its Judgment on Municipal Capital Gains (STC 182/2021) by which it was required to have appealed the liquidation or to have requested a rectification of the self-assessment. In accordance with this criterion, failure to comply with these requirements could lead to the establishment of the situation as consolidated and, consequently, the impossibility of obtaining a refund.
It is necessary to decide whether such a request to urge the rectification of the self-assessments of 2021 and 2022 could be beneficial, taking into consideration that any action against a self-assessment of the Tax would entail the interruption of the 4-year prescription period (article 66 of the General Tax Law), and in each case, it must also be assessed whether a possible revision to such tax is advisable.
From Busquets we are at your disposal if you need any support in this regard.