12-18-17.The allegation of the mistake on the calculation formula of IIVTNU has been losing strength step by step and the taxpayers have preferred to allege other matters such as the absence of taxable event, and even the unconstitutionality of the duty, by considering its estimation for granted and sure.
However, it’s not a closed discussion, as there are always some Courts which are inclined to assess this type of allegation. And this has been confirmed by two recent judgements pronounced by the Litigious Administrative Court nr. 15 in Madrid, with date 10-13-2016 (Appeal 261/2015) and 11-11-2016 (Appeal 11/2015).
The aforesaid judgements established this: ‘that the capital gains tax calculation following the mathematic formula used by the appellant reflects the increase of the value registered by the property from its acquisition until its transmission, as it calculates, firstly, which was the value of the property at the moment of its acquisition and compares this value with its final or transmission one; by this difference, the increase of the value that the property has experienced is obtained; but the Town Hall’s formula reproduces the value of the ground in future years and not during passed years, which haven’t occurred yet’.
Out of the all aforementioned, the allegation of the mistake of the calculation formula on the taxable base of the IIVTNU must be used carefully and on certain assumptions. That is, when the taxpayer could prove that due to the transmission of the plot there hasn’t been an increase of its value, the best step is to declare the unconstitutionality of the duty, or the non-existence of a taxable event.
In this sense, the Supreme Court of Justice has resolved, as so did the TC, about the unconstitutionality and nulity of the formula for calculating the capital gains tax established in the aforesaid articles, but only at situations which oblige to the taxation to those facts with non-existence of an increase of the value.
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