The High Court considers that the capital gain tax is unconstitutional in these cases, very common since the outbreak of the economic crisis. We must consider that the tax is not annulled but its automatic application in cases where there’s no revaluation of the property.

Last February, the Constitutional Court (TC) has already the unconstitutionality of the capital gain tax on the increase in value of the Urban Nature Land (IIVTNU) of Gipuzkoa, when in the transmission of a property would have been sold at a loss. With the new sentence, the Constitutional extends this doctrine to the whole national territory. According to the judgment of the Constitutional Court, the seller of a property can’t be required to pay a tax that levies an increase in value which, in fact, has not occurred.
The TC values that the constitutional principle of economic capacity is violated since the tax is not linked to the existence of a real increase in the value of the property, but simply to ownership of the land over a period of time. For all this, the Court declares the unconstitutionality and nullity of arts. 107.1, 107.2 (a) and 110.4 of the challenged law. All those taxpayers who sell a house and obtain a profit from the transaction, must continue to pay it.

In view of the foregoing, it’s estimated that the number of properties on which the repayment of the surplus value could be reclaimed because it was transmitted for a value lower than that of acquisition would be around 550,000 properties. Any natural or legal persons who have paid the tax by virtue of the transfer of a property to losses in a non-prescribed fiscal year can claim the payment of a non-corresponding capital gain.

What is needed to claim?

1.- Appeal to the council, although it may subsequently be necessary to resort to the courts.

2.- A technical report performed by an independent expert, which proves the loss of value produced between the moment of purchase and that of the sale. A specific technical report is required on the property transmitted, which shows the variation of the market value of the land between the moment of acquisition of the property and the transmission.

3.- The deeds of purchase and sale of the last and penultimate transmission of a property.

4.- Statistics of average prices of the residential market of the municipality or the postal code where the asset is located.

Contact us if you are faced with the need to claim a capital gain overpaid or have questions about the status of your property.