The municipal capital gains tax could be unconstitutional when a ' loss' apartment for sale

A court in San Sebastian was the first to cast doubt on the constitutionality of the municipal capital gains tax when a home is sold in patrimonial loss, i.e. when a negative operation performance is obtained because the property is sold below the cost of purchase. The Basque Court has raised the unconstitutionality of the tribute by understanding that it violates articles 24 and 31 of the Constitution.

Apparently, finance provides this tax regardless of the specific circumstances of the transmission housing and calculates the tax base in a manner completely alien to the gain or loss that has been obtained the seller in the transaction.

This circumstance, in operations where there is equity loss, would violate that reflects article 31 of the Constitution: "All contribute to sustain public expenditure according to their economic capacity through a fair tax system based on the principles of equality and progressivity, which, in any case, will have scope confiscatory".

This is, for the Court of San Sebastian the tax approach proposed by the law, in the case in which a ' loss' operation shows that the increase in the value of the municipal land is not real or true, by which require your payment could lead to a breach of the principle of economic capacity.

In addition, according to legal attic, "the fact that regulations not contemplate the possibility that transmission loss or impairment is assessment of a fictitious increase that, be calculated by default by the method laid down in the regulation, cannot be either subject to a contradictory expert appraisal for the determination of the tax base or admits evidence to the contrary".

This, according to experts, is a clear limitation of the right of defence provided in article 24 of the Constitution, which stipulates that all people "have the right to obtain effective protection of the judges and courts in the exercise of their rights and legitimate interests, without, in any case, it can lead to helplessness" and that also have the right "to use relevant means test for his defence".