Review of municipal capital gains and property liability

This paper presents the issue of the effectiveness of the declaration of unconstitutionality of a tax law in relation to the acts of settlement of the tribute dictated under this law, and the possibility of obtaining, in a subsidiary way, a result equivalent to the Annulment of such acts by way of the patrimonial responsibility of the Administration or the legislature State.

The Sentence of the Courtroom of the Contentious-Administrative of the TS 9-7-18 (Rec cassation 6226/17)-EDJ 2018/513434-has fixed the scope of the Judgement contained in the STCo 59/2017, of 11 May-EDJ 2017/61456-, on the Tax on the Increase of the Value of the Land of Urban Nature (IIVTNU) (1), noting, in short, that the tribute is legally enforceable “in all those cases in which the taxpayer has failed to certify”, by any of the means referred to in the principle of the fifth right of the Own Judgement, “that the transmission of property of the land by any title (or the Constitution or transmission of any real right of enjoyment, limiting the domain, on the aforementioned land), has not shown an increase in its value”.

Apart from polemics, it seems reasonable to deduce that, based on the interpretative effect of this Judgement, on those situations relating to municipal capital gains that would be accrued after the publication in the Official Gazette of the State of the STC 59/2017-EDJ 2017/61456-, the taxpayers will be able to demonstrate the non-existence of the increase of value and to evade their payment.

What We are considering here is the incidence of this declaration of unconstitutionality in relation to the taxes that have already been liquidated.

In the case resolved by that Judgement of the Supreme Court, the consequence of the interpretation referred to was to validate the administrative decision not to access the rectification of the IIVTNU and, therefore, to the return of the income made For that concept. This is due to the High Court’s respect for the evidentiary conclusion contained in the contested judgment, according to which the person concerned does not credited the non-existence of an increase in value. It Is inferred from here that no obstacle could be opposed to the obtaining of such a return if the taxable person, to whom the burden of proof according to the Supreme Court (FJ 5, paragraph 1) corresponds, would have demonstrated the non-existence of “real increase” of the value of the Land.

It Is Necessary to repair in the essential fact that the request for return was founded, in the case that prosecutes this Sentence, in the rectification of the autoliquidation presented by the taxpayer under the protection of the art. 120.3 and 221.4 of the General Tax Law (LGT)-EDL 2003/149899-. What We are asking now is whether this same result can be obtained when the tax management system is the administrative settlement (art. 119 LGT), which leads us to examine the projection of such a declaration of unconstitutionality with respect to the acts Administrative firm. In fact, it is not, in my view, a question of the temporary efficacy of such declarations of unconstitutionality, as it has been wanted to see, as there is no doubt that such a pronouncement will display its invalidating effects on the administrative acts of Settlement under review, even if the tax return had taken place a long time ago. The question is about the possibility of reviewing firm acts.

In A second step, ruled out, in hypothesis, the reviewability of these firm settlements, we question whether the actions of patrimonial responsibility of the Administration or the State legislature may be suitable ways to obtain an equivalent result. We must Not lose sight of the idea that if the first way (the revision of the firm administrative Acts) is rejected, the possibility of achieving the refund of the paid, at least for the years to which it reaches the prescription, will depend to a large extent on the municipal decision , embodied in the corresponding Tax ordinance, on the management system of the tribute in accordance with article 110 of the consolidated Text of the Law Regulating Local Haciendas (LHL)-EDL 2004/2992-: Administrative settlement prior declaration or Autoliquidación. In short, in those municipalities that have established the system of liquidation, unless it has been dictated administrative settlement, the taxpayers will have the term of four years to, through the appropriate rectification, to claim the Application of the Failure of unconstitutionality, whereas in those others in which the administrative settlement system governs only such effect may be claimed promoting the revision of the firm settlements or by means of the action of patrimonial responsibility , which greatly decreases the chances of success (2).

I. Invalidity for constitutional infringement

Beyond art. 164 Const-EDL 1978/3879-, precept referred to the scope erga omnes of the declarations of unconstitutionality of the laws (3), regulate this matter art. 161.1 a) Const and art. 40 of the Organic Law of the Constitutional Court (LOTC)-EDL 1979/3888. There is No doubt that the ultimate interpretation of these precepts-especially the first-only to the Constitutional Court may correspond. However, it must also be recognized that, in the background, which we call ‘ ordinary legality ‘, there are the regulatory legal norms of the categories, channels and means through which it is intended to enforce the effectiveness of such pronouncements of Unconstitutionality: For example, the category of null acts of full right and consequent revision of trade; The procedure for the claim of improper income, the prescription; The causes of opposition to the providences of urgency; And the patrimonial responsibility of the Administration and the legislature State. The interpretation of these last rules, being of ordinary legality within the free configuration of the legislator, with respect to the constitutional precepts mentioned above, corresponds to the ordinary Courts.

In this sense, the doctrine of the Constitutional Court leads to distinguish two categories: the one concerning the efficacy of the pronouncements of unconstitutional laws, whose determination corresponds to the own Tribunal ex art. 161.1 a) Const-EDL 1978/3879-; And the channel, procedure or institution aimed at recognizing this effectiveness in each specific case, a matter of ordinary legality (4) and, therefore, that it is appropriate to resolve the Courts subject to the canon of reasonableness ex art. 24.1 Const.

It Should Be noted that, with the limit of art. 161.1 a) Const-EDL 1978/3879-(5), there seems to be no obstacle in the Constitutional Court itself setting the scope of the effects in the judgement itself declaring unconstitutionality, which, on the other hand, is not Uncommon. What We are examining here is, however, the scope of the declaration of unconstitutionality in the absence of an express pronouncement by the Constitutional Court, as happened in the case we analyzed from the STC 59/2017-EDJ 2017/61456-in relation to the IIVTNU; And what we are trying to know is whether the firmness of administrative acts can constitute a general limit to its disabling effectiveness.

The constitutional perspective and that of ordinary legality Can be distinguished, as anticipated.

A) From the constitutional point of view, the question is whether the general limit of the thing judged expressly envisaged by art. 161.1 a) Cosnt-EDL 1978/3879-can be extended to other situations.

The Constitutional Court itself has declared, by demands of legal certainty, the “judicially consolidated” situations with the single “assessed exceptions of the general rule” included in article 40 LOTC-EDL 1979/3888-exceptions which, As such, they must be interpreted restrictive (6). And has considered “judicially consolidated” situations not only those decided by Sentence with force of judgment, but also those established by “firm Administrative Actions” (7).

The equating, which has its origin in the famous STCo 45/1989, of 20 February-EDJ 1989/1854-, it enjoys, in my opinion, a logical foundation unappealable. In the words of the Constitutional Court itself, the contrary conclusion would imply an unacceptable treatment of disfavour for those who resorted, without success, to the Courts, in contrast to the treatment received by those who did not urge in time to review the Act of implementation of The provisions then declared unconstitutional (8). The Right cannot dispense better treatment to the one who consented to the situation which he then seeks to revise than to challenged to the Courts, even if he did not obtain a favourable result (9). Curiously, this same maxim seems to be present, from the inverse perspective, when establishing itself, as one of the requirements of the action of patrimonial responsibility of the State legislator by unconstitutionality of the law, having resorted to the act of application [Art. 32.4 of the Law 40/2015, of 1 October, of Juridical System of the Public Sector (LSP)-EDL 2015/167833-].

Consequently, from this point of view, the invalidity of the rule for unconstitutionality will unfold all its effectiveness in respect of the administrative acts which, on the date of publication of the Constitutional Court judgement, are pending complaint or administrative or judicial appeal (10).

I Must clarify that the forecast art. 32.6 LSP-EDL 2015/167833-cannot prevent the declaration of institutionality from attaining such effectiveness. Although It seems that the legislator has tried to influence this matter by declaring in this precept, in headquarters of patrimonial responsibility, that the declaration of unconstitutionality “will produce effects” from the date of publication of the sentence except that in this one is Otherwise, it is not acceptable to alter the meaning of the nullity for unconstitutionality (11).

b) At the level of ordinary legality, we must determine whether the category of disability we are dealing with has a fit in some of the institutions for the review of firm administrative acts provided for in the laws. For this case, we only serve the General Tax Law-EDL 2003/149899-.

Prior to this, it should be recalled that the procedure for the return of undue income does not constitute a channel of revision. Outside the self-liquidating assumptions in which the rectification of the same is permitted (art. 221.4 LGT-EDL 2003/149899-(12))-which, as I have pointed out above, constitute the supposition of fact on which it has relapsed and for which it has given a solution the Judgement of the Supreme Court quoted at the beginning-in order to request the return in the cases of firm settlements, it will be necessary to promote the revision by means of the procedures of revision of trade, harmfulness, rectification of errors and extraordinary appeal of Review (art. 221.3 LGT (13)).

We Can rule out, of entry, the extraordinary remedy of revision (art. 244 LGT-EDL 2003/149899-), since, with regard to the first cause (only one which, in hypothesis, could be envisaged), nor the STCo can be qualified, for those purposes, of “document” nor evidence « Error ‘ (14); The declaration of harmfulness followed by the judicial annulment (art. 218 LGT) because its budget is missing; and rectification of errors (art. 220), because it cannot be spoken, in these cases, of material error, in fact or arithmetic. Bearing in mind that the revocation, by trade, by the Administration (art. 219 LGT) is presented as a highly unlikely option, the possibility of revising these firm acts goes through the revision of Office of NULL acts of full law (art. 217 LGT).

In my opinion, the assumption that we analyse has a difficult fit in the causes of nullity defined by art. 217 LGT-EDL 2003/149899-, which enable the revision of the trade and which are, in addition, strict interpretation (15), taking into account the nullity by Unconstitutionality of the legal norm declared by the STCo 59/2017-EDJ 2017/61456-. Such disability does not have its origin in the injury by the tax standard of a fundamental right, since the principle of economic capacity embodied in the art. 31.1 Const-EDL 1978/3879-does not enjoy such rank and is not one of the “rights and freedoms susceptible to amparo Constitutional» Ex Art. 53.2 Const-EDL 1978/3879-y 41.1 LOTC-EDL 1979/3888-, so you can not preach the liquidations, for this exclusive reason, the vice referred to in the aptdo of art. 217 LGT.

A sector of the doctrine and of the Courts has tried to build a kind of cause of autonomous nullity, as derived directly from the pronouncement of unconstitutionality, and there have been no lack of attempts to fit the assumption in the causes envisaged in the Legras c)-acts which have an impossible content-, F)-Express acts contrary to the legal system by which faculties or rights are acquired when the essential requirements for its acquisition are lacking-and G-any other which is expressly established in A legal range provision-of the article 217 LGT-EDL 2003/149899-(16).

However, the traditional interpretation of the above-mentioned causes of annulment precludes that the alleged examination may be fitted in them and, as has been advanced, the autonomous category of ‘ nullity for unconstitutionality of the standard of coverage ‘ cannot be accepted (17) .

In this sense, the Supreme Court, in dealing with the possibility of revision of trade of acts of tax settlement in which could affect the STCo 203/2016, of 1 April-EDJ 2016/222470-, which declared unconstitutional and null art. 30.2 Norm Foral 10/2006 , of 29 December, regulating the INCOME TAX of Gipuzkoa-EDL 2006/381897-, for contravening the provisions of article 3. A) of the Economic Concert-EDL 2002/12962-(obligation for the competent institutions of the Basque Country to adapt to the General Tax Law in terms of “Terminology and concepts”), has pointed out its lack of incidence on such acts, affirming that “the situations consolidated, including not only those decided by sentence with force of thing judged but also the administrative actions Firm, they are not susceptible to being revised as a result of the declaration of nullity which implies the unconstitutionality appreciated in the judgment of the Constitutional Court ‘, and has confirmed the criterion of the Contentious-Administrative Room of the Superior Court of Justice of the Basque Country on the inappropriateness to summarize the assumption in the cases assessed of nullity (18).

In fact, the communication of the invalidity of the norm to the administrative act dictated in its application is modulated by the legislator in attention to two elements: the severity of the vice or defect, or, what is the same, the degree or intensity of the antijuridicidad; And the nature of the act in question. Within the first element the maximum range is occupied by the fundamental rights [art. 217.1 a) LGT-EDL 2003/149899-] with respect to the second, it should be noted that the sanctioning acts (art. 40 LOTC-EDL 1979/3888-) are particularly sensitive. This explains, for example, that the possibilities for revision are ‘ maxim ‘ when it comes to sanctioning acts detrimental to fundamental rights. These reasons determine that ‘ invalidity for unconstitutionality ‘ cannot be accepted as a single category (19). Thus, it cannot be projected in the same way on the administrative acts the invalidity for contrary fundamental rights that for any different causes, among which it finds the appreciated by the STC 59/2017-EDJ 2017/61456-.

In our case, a second circumstance complicates the revision of the trade. The unconstitutionality of the legal rule is partial and incomplete; For one case, consisting of the ‘ non-existence of value increase ‘, whose verification requires the practice of testing. Although the circumstance of not being legally envisaged for this procedure a trial process can be a minor problem, from the practical point of view it is unimaginable the initiation of trade by the town halls of many procedures Contrary to their own interest, when their own provenance demands an important evidentiary effort which, in addition, corresponds, according to the Supreme Court, to the own taxpayer. This leaves us as a single exit that the interested person requests the initiation of the procedure [art. 217.2 b) LGT-EDL 2003/149899-] accompanying a principle of test. In any case, although the admission of the Scriptures (20) can facilitate the way, the city Council will have to positively assess such a factual end in order not to reject liminarmente the application for manifest lack of basis (art. 217.3 LGT).

II. Equity responsibility

  1. The patrimonial Responsibility of the State legislature

As a way for the reinstatement of the unduly paid when the act of settlement had its coverage in laws declared unconstitutional, it has been used that of the so-called patrimonial responsibility of the State legislature, either in a subsidiary way, when The action to annul the settlements was not successful, or alternatively, when such action was not exercised.

The jurisprudence of the Supreme Court, in summary and what we are now interested in, had been considering that, in assumptions like the one we analyze, this action of responsibility is a different action of the nullity of the Act, that the result of this first not It prejudges the second and that the latter has no subsidiary nature (21). Reaction to this last qualification appears to be the aforementioned art. 32.4 LSP-EDL 2015/167833-, which requires, as a requirement for this responsibility to arise, that “the individual has obtained, in any instance, a firm judgement of a remedy against the Administrative action which caused the damage, provided that the unconstitutionality subsequently declared was alleged ‘.

Apart from the problems of validity and interpretative that may arise this new requirement (22), as well as the temporary limitation of compensable damages established in art. 34.1, according to paragraph, LSP-EDL 2015/167833-(23), it seems undoubted that it will reduce Enormously the assumptions in which this action can prosper to recover what was paid under the IIVTNU when it did not respond to a real increase in the value of the land.

It Should be noted that this new regulation can produce, in the case of the unconstitutionality that we analyse, a result that does not cease to be paradoxical: it complies with the requirement of the art. 32.4 LSP-EDL 2015/167833-and can, in pure theory, prosper the action, in the Of course, nothing strange on the other hand, that, in the event of a dismissal judgement, this was founded on the lack of proof of the decrease in value; If, in that litigation, the unconstitutionality of Contrariety had been alleged with the principle of economic capacity of art. 31.1 Const-EDL 1978/3879-, nothing would prevent, following also the aforementioned jurisprudence on the non-existence of “considered thing”, Rethinking the factual question concerning the non-existence of real capital gains by settling the patrimonial responsibility of the legislature, so that we could have sentences based on opposite factual conclusions: with respect to the same transmission, the First affirms and the second denies the existence of increase of value.

  1. The patrimonial Responsibility of the city councils

In Order To Hasten the possibilities of reaction on board one last hypothesis: that of the patrimonial responsibility of the city councils by operation (normal or abnormal) of its services.

The idea that I propose is simple: synthetically, based on the content of the declaration of unconstitutionality (partial or incomplete), it is a question of relapsing the title of imputation in the conduct of the City Council that has applied the Law in a case of Non-existence of an increase in real value and which, by the tax management system by which it has opted by means of the corresponding tax Ordinance-the Administrative settlement instead of the self-settlement procedure-does not allow the review of the Act Administrative generator of the antilegal damage.

Against this construction can oppose the jurisprudence relapse on patrimonial responsibility of the State legislator in the assumptions of the supplementary levy of the Rate of Play and of the Tax on the Retail sales of Certain hydrocarbons ( IVMDH) (24). For these cases, in which the Antijuridicidad derived from the declaration of unconstitutionality, in the first, and from the contradiction with European Community Law, in the second, the Third Chamber of the Supreme Court considered that it was indifferent “what Administration or administrations would have benefited from the tax returns ‘ as well as that could influence the configuration of the same-approving, for example, additional rates-, noting that the relevant was «what administration or Administrations are responsible for their implementation ‘.

The assumptions, however, were far from that which we examined: apart from the different causes of antijuridicidad of the corresponding laws, subject in which we cannot enter here, in both cases such statements were made in the midst of litigations in which the Action of patrimonial responsibility was exercised against the State-legislator; And they respond to what is alleged by the defense of the same in connection with the participation of the Autonomous Communities or the Territorial Governments of the Basque Country as causative or concurrent agents in the cause of the damage (25), either by having attributed competences Management, as well as being the beneficiaries of the tax returns. It also Beats the idea that the indeclinable demand for the application of taxes by Public Administrations makes the legislator who implements them “only guilty”, operating in respect of such Administrations as a kind of cause of exclusion Liability for ‘ unenforceability of conduct other than that developed ‘.

The new normative scenario, starting from art. 32.4 LSP-EDL 2015/167833-, can lead to rethink the previous solutions, without forgetting that the assumption that we deal with presents unique circumstances that we have been aiming: (i) as we have seen, the Antijuridicidad of the legal norm is only for one case – the “non-existence of value increase”-, whose determination corresponds in the first instance to the city Council (26); (ii) the municipalities have the authority to set the tribute in the terms of art. 108 LHL-EDL 2004/2992-; (iii) The management system, which will depend on the possibility of revision, as we have also pointed out, is established autonomously by the local authority itself (art. 110 LHL).

On the other hand, it cannot be overlooked that the Supreme Court had placed the foundation of this singular patrimonial responsibility of the legislator State in the need to compensate the injured by the maintenance, for reasons of legal certainty ( Art. 9.3 Const-EDL 1978/3879-), of the effects of radically null administrative acts as the general provisions in which they were based contrary to the Constitution (27), citing in their support the art. 62.2 and 102.4 of the Law 30/1992, of 26 November, of Legal Regime of the Public Administrations and of the Common Administrative Procedure-EDL 1992/17271-. While This argument remains fully valid after the laws 39-EDL 2015/167833-and 40/2015-EDL 2015/167833-(28), the new requirement of the art. 32.4 LSP-EDL 2015/167833-will cause the institution to stop doing this function in a useful way.

In short, although each case will claim a different solution, this approach, which involves obviating the rule of the third section of art. 32 LSP-EDL 2015/167833-to return to the first section, despite the fact that it finds various obstacles, may constitute the Last mechanism to restore the effective equality of citizens who demand from the public authorities art. 9.2 Const-EDL 1978/3879-.


1.-The aforementioned Ruling stated that “articles 107.1, 107.2 a) and 110.4-EDL 2004/2992-all of them from the revised text of the Law regulating local haciendas, approved by Royal Legislative Decree 2/2004, of 5 March, are unconstitutional and null, but Only to the extent that they subject to taxation situations of non-existence of value increases ‘.

2.-We discard the procedure of rectification of declarations because the budget of the art. 130 RD 1065/2007, of 27 July, which approves the General Regulations of the proceedings and the procedures of management and tax inspection and of Development of the common rules of the procedures for the application of tributes-EDL 2007/115078-.

3.-Both The article 164 Const-EDL 1978/3879-as the art. 38.1 LOTC-EDL 1979/3888-, refer to the recipients of the judgments of the Constitutional Court. What Both standards say is, those that declare the unconstitutionality of a Law and those that are not limited to the subjective estimation of a right, in addition to the value of something judged, have “full effects against all” (art. 164.1 Const) or “General effects” (art. 38.1 Const). Thus, the doctrine has understood that: «This General efficacy does not say anything by itself on the effects ex nunc or ex tunc of the declarations of unconstitutionality; In both cases it is possible to talk about effects erga omnes (…)» “Comments to the Constitutional Court’s Organic Law”. Coordinator recomplain Pagés, J.L. Official Gazette of the State, 2001.

4.-In the same direction, in ‘ Comments to the Constitutional Law ‘. Coordinator recomplain Pagés, J.L. Official Gazette of the State, 2001, (art. 40 LOTC-EDL 1979/3888-; pp. 622 and 623), quoted by J. Jiménez Campos, it is said that the firm administrative situations will be reviewable “to the extent, and only in it, that they are still susceptible of public, administrative or judicial decision ‘. According to this, ‘ therefore, the general regime of the act concerned and the cause of its unconstitutionality shall be addressed. ‘

5.-Art. 161.1 a), second subparagraph, Const-EDL 1978/3879-: «The declaration of unconstitutionality of a

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