The Constitutional Court (“TC”) has admitted for processing an unconstitutionality appeal brought by the People’s Parliamentary Group based on a twofold rationale:
On the one hand, the potential confiscatory nature of the tax. The 2021 Budget Law increased the maximum marginal tax rate by %, raising the state tariff from 2,5% to 3,5%. This amendment has served as the basis for raising the issue of the potential confiscatory nature of the tax. This matter would not affect taxpayers with tax residence in Catalonia, since unconstitutionality, should it be declared, would be limited to the state tariff of the tax introduced in the Budget Law for 2021, and would therefore only affect autonomous communities that had not approved their own tax tariff and/or non-resident citizens who are taxed by applying the state tariff.
And on the other hand, the conversion of a temporary tax into a permanent one through improper legislation. This conduct is prohibited by Article 134 of the Spanish Constitution, which in its seventh paragraph establishes the prohibition against creating new taxes via a Budget Act. If the Constitutional Court declares unconstitutional the legislative technique that has made permanent a temporary tax declared unconstitutional – namely the abolition of the 100% tax relief – that relief would remain in force and, consequently, a full refund of the Wealth Tax assessments issued for the 2021 financial year and onwards should be processed.
In light of all the above, it is relevant to consider whether or not it is advisable to request the rectification of the tax self-assessments filed for the 2021 and 2022 financial years. All indications are that the Constitutional Court will maintain the criterion applied in its Judgment on Municipal Capital Gains Tax (STC 182/2021), which required either having appealed the assessment or having requested a rectification of the self-assessment. In accordance with this criterion, failure to meet these requirements could result in the situation being deemed consolidated and, consequently, the impossibility of obtaining a refund.
It is necessary to decide whether such a request to apply for the rectification of the 2021 and 2022 self-assessments could be worthwhile, bearing in mind that any action against a tax self-assessment would entail the interruption of the 4-year limitation period (Article 66 of the General Tax Act), and in each case, it must also be assessed whether a potential review of said tax is advisable.
We at Busquets are at your disposal should you need any support in this regard.