The Constitutional Court has admitted the question of unconstitutionality raised by the Superior Court of Justice of Andalusia on the use of the cadastre reference value as a taxable basis for taxes such as the Tax on Patrimonial Transmissions (ITP), Documented Legal Acts (AJD), Successions or Donations.
This value, introduced in 2021 by Law 11/2021 (which can be consulted in this Official State Gazette) of measures against fiscal fraud, it is objectively calculated by the General Directorate of the Cadastre and forces to be taxed by the highest between the writing price and the official reference value. The problem (as numerous experts and sentences denounce) is that it can be well above the real price, making the taxpayer pay for a fictitious economic capacity.
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In this sense, the notary María Cristina Clemente has explained in a video that this admission (published in this BOE) in process opens an opportunity for those who, in the last four years, have paid these taxes on a reference value greater than the real one. “If this is your case, it already raises the rectification of that self -assessment,” he warns.
Why is it urgent to act before the sentence?
Clemente remembers what happened with the municipal surplus value: when the Constitutional declared it unconstitutional, it limited the effects of the sentence to taxpayers who had already initiated a claim before publication. Therefore, its recommendation is clear and says that if you suspect that the reference value that was applied to your operation was inflated, presents the rectification application as soon as possible. And if you already have an open procedure, add the allegation of unconstitutionality as an additional argument.
This action could allow to recover the paid of more or lose the possibility of doing so if the Constitutional decides to follow the same restrictive criteria in its effects.
An opaque and general method
The reference value was born with the intention of reducing legal litigation and replacing the concept of real value in the calculation of the tax base. But complaints have focused on that their massive and unre transparent methodology, ignored essential elements to assess a property such as its state of conservation, materials or characteristics of the building.
This has generated situations for example, in which two very different homes, but that were located in the same area, end with the same reference value. In addition to the proof of the load, it always falls on the taxpayer, which must assume the cost of expert opinions to demonstrate that the official value does not fit reality.
The way to challenge depends on the type of declaration presented:
- SELF -HEADS: Four years are available to request the rectification and return of improper income.
- Administration settlements: The deadline to resort is one month since its notification.
In any case, initiating the procedure is now the best way to ensure that an eventual favorable sentence of constitutional benefits you, avoiding being out of a possible limitation of effects.