Last call to claim the patrimonial responsibility of the state legislator in municipal capital gains

This Friday, November 25, marks one year since the publication in the BOE of the Constitutional Court ruling number 182/2021, of October 26, which declared the unconstitutionality of the objective system for calculating the municipal capital gains tax. Therefore, the term to urge the patrimonial responsibility of the legislating state is exhausted. And it is probably the last train that those who paid the municipal capital gains tax and could not get it annulled in court can take.

IS IT POSSIBLE TO CLAIM EQUITY RESPONSIBILITY, OR ARE WE FACING A PATH CLOSED BY THE SUPREME COURT?

That it should be specified, in the first place, that the limitation of effects of the declaration of unconstitutionality included in STC 182/2021 cannot suppose any condition when obtaining compensation for patrimonial responsibility. And this, taking into account that said declaration of unconstitutionality only prevents reviewing the firm liquidations of the IIVTNU, and that what is intended with the patrimonial responsibility is not the revision of the liquidation, but obtaining compensation. This was declared by the Supreme Court, Contentious Chamber, Section 5, in a judgment of 6-16-2021 (Rº 8638/2019), stating that "The principle of legal certainty cannot be invoked" to exonerate the State for damages and damages caused by its legislative action. Indeed, said action is foreign and of a different nature to the tax administrative activity on which that principle is projected in its formulation by the Constitutional Court. The compensation of the damages caused by the application of the unconstitutional law is not equivalent to the return of the income made, which may correspond to a different entity.” It is true that two recent pronouncements of the same Chamber and Section (of 7-27-2022 and 10-5-2022) have referred to this issue.

This, considering that the limits of the declaration of unconstitutionality contained in STC 182/2021 would prevent obtaining compensation for financial liability. However, I believe that these rulings (surprisingly held by a prominent representative of AEDAF), address this matter without any depth, and sideways, without therefore being able to consider that we are before a definitive pronouncement that closes the door to the initiation of these patrimonial liability procedures. There is therefore a battle, although no one says that we are simple procedures. Author: José María Salcedo (josemaria.salcedo@aticojuridico.com)