IIVTNU settlements and their contestation after the judgement

Provisional or final settlements for the Tax on the Increase in Value of Urban Land (IIVTNU), which have not been challenged prior to the ruling issued by the TCo, cannot be challenged on the basis of the declaration of unconstitutionality made in said ruling. The same applies to the request for rectification, for self-assessments in respect of which no such request has been submitted prior to the issuance of the aforementioned ruling.

Until when could he have argued the unconstitutionality of the IIVTNU?

In this cassation appeal, the SC resolves whether tax assessments that have not been challenged up to the date of the ruling can be challenged on the basis of the declaration of unconstitutionality made in the ruling. The question also arises as to whether it is possible to request the rectification of self-assessments in which such a request had not previously been made at the time the aforementioned ruling was issued.

The Constitutional Court makes it clear in its ruling that the intention is to protect situations consolidated up to the date on which the ruling was issued, rather than the date of publication of the ruling, as established in the regulations. It is based on its own interpretation in order to be able to establish temporal limits to intangible situations in the absence of an explicit regulation in this respect in the Organic Law of the TCo.

The judgment, which in this case coincides with the date on which it is handed down, is a crucial temporal element in the manifestation of the Court’s decision. Although the judgment may be known subsequently through its publication in the BOE, it is possible that it may be subject to prior publication by other means. This is evident in the case mentioned above.

Consequently, the delimitation of the situations consolidated up to the date of delivery of the judgment is an exclusive power of the CoA and it is only for the CoA to take that decision, within the exercise of its powers and responsibilities.

Judges and courts are obliged to interpret and apply laws and regulations in accordance with constitutional precepts and principles. Therefore, they must abide by the qualification of the consolidated situations, as established in the judgment.

Based on the above, the Supreme Court establishes as case law that, in accordance with the ruling, provisional or definitive settlements for the IIVTNU that have not been challenged up to the date of the ruling, cannot be challenged on the basis of the declaration of unconstitutionality made in the ruling. Similarly, it is not possible to request the rectification of self-assessments if such a request has not been submitted prior to the date of the aforementioned ruling.

However, it is possible to challenge provisional or final tax assessments that have not become final at the time of the ruling within the time limits established for the various administrative appeals and contentious-administrative appeals. In addition, rectification of self-assessments may be requested on grounds other than the declaration of unconstitutionality made by the ruling. These grounds include previous TCo rulings declaring the unconstitutionality of IIVTNU regulations when they taxed situations with no increase in value, or when the tax liability is confiscatory, as well as any other valid grounds for appeal.

If you have any doubts about this subject, please do not hesitate to contact us by telephone at Núria Martí García or by e-mail at nmg@btsasociados.com, we will be delighted to help you.