Aviso a navegantes: Sobre la posible inconstitucionalidad del impuesto sobre sucesiones y donaciones, el impuesto sobre el patrimonio y el impuesto sobre transmisiones patrimoniales y actos jurídicos documentados

Abstract

the ruling of TC 182/2021, of October 26, relative to the Tax on the Increase in Value of Urban Land, transcends the scope of the said local tax. Thus, the considerations expressed in this sentence regarding the requirements that need to be fulfilled, so that objective cadastral valuations are compatible with the principle of economic capacity, can and should be applied, not only to the cadastral value, but also to the new reference value, which is as cadastral and objective as the first. That is why, after a description of how this new reference value is configured, we now relate it to the aforementioned sentence, examining the new regulation under the light of the sentence for the Tax on the Patrimony, the Tax on Inheritance and Donations and the Tax on Patrimonial Transmissions and Documented Legal Acts. After verifying the regulation of the valuation of real estate in the three taxes with the compulsory use of the new reference value, we conclude, that it turns out to be unconstitutional, for frontally transgressing what was established by the aforementioned sentence. We understand that the basic requirements established in the aforementioned sentence are not fulfilled in these three taxes. Therefore, these compulsory objective valuations in the three taxes fail to comply with the principle of economic capacity, since they do not offer options to the reference value to be used, not in an imperative way, but as real alternatives to it when the actual value turns out to be less than reference value. Ultimately, this regulation will have to be modified, in the sense of not obliging to use the reference value imperatively, when it is higher than the real value. The solution is simple and necessary: modify the new regulation in order to avoid the imperative use of the reference value, offering the possibility of using the real value in the three taxes as an alternative. Otherwise, the new regulation established by Law 11/2021 may be declared unconstitutional