Constitutional Court Judgment of February 16, 2017 rules that this plusvalía tax works against the Spanish Constitution in those cases where there has been no increase in land value at the time of the transfer, which means that the vendor would sell the property at a loss. It is a true fact that the ruling concerns only a legal provision of the Basque Country (Guipúzcoa) but this legal provision is a copy of the national Government regulation that applies to the same cases, therefore we must assume that this national Government regulation is also affected.
The general nature of this tax is not against the constitution as such. However, the tax can be against the Constitution in situations when there is a non-existence of increased land value at the time of the ownership transfer. Therefore, IMONTLEGAL SERVICES, S. L. will offer you advice and assistance on how to file a legal challenge with concern to the plusvalía tax, if you sold your property during the last four years or if you are planning to sell Spanish property and provided there has been a lack of increase in its land value.
How do I reclaim overpaid tax?
The procedure to reclaim overpaid tax starts with a written letter sent to Town Hall which had the property taxed, with a claim for the plusvalía tax to be paid back to you. If the Town Hall does not answer or if the Town Hall´s answer is negative, an appeal can be made, called “recurso de reposición”. Subsequently, another appeal can be made at the Spanish Court (Tribunal Económico-Administrativo) called “reclamación económico-administrativa”.
After these steps have been taken within the frame of Town Hall Administration, a legal claim can be made by judicial means. Through a Court Claim at the competent Supreme Court of Justice called “recurso contencioso-administrativo” possibilities for a successful outcome increase considerably.
Before making a legal claim by judicial means it is advisable to take all possible assumptions into account. It should be remembered that we are dealing with an administrative matter concerning the payment of taxes. Therefore, the non-payment of the tax is by no means to be recommended, as the Administration has the judicial power to charge penalty for unpaid taxes. And it is the Court that has to decide whether overpaid tax shall be returned.
Feel free to contact us any time, by calling or mailing us. We will be pleased to study your individual case and see what we can do for you. We will also be able to give you a price estimate for the legal procedure.