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The heart of the Tribunal constitutional, It has partially estimated the question of unconstitutionality raised by the Court of the Donostia contentious under several articles of provincial 16/1989, de 5 July, the tax on the increase of the value of the land of urban nature of the historical territory of Gipuzkoa.
The Tribunal considers that the abovementioned tax is contrary to the principle of economic capacity, laid down in art. 31.1 CE. Has been rapporteur of the resolution the Vice-President of the Tribunal, Adela Asua.
The impugned rule establishes a tax on the surplus value of land in urban nature, tax that accrues at the time in which occurs the sale of the good and that is calculated objectively from the rateable value and the years (between a minimum of one and a maximum of twenty) for which the owner has been holder of the same.
The decision recalls the doctrine of the Constitutional Court on the principles of the art. 31.1 CE and reiterates that “in no case may the legislator establishment a tribute taking into consideration acts or facts that are not exponents of a real or potential wealth”. I mean, cannot create tax relating to “those cases in which the economic capacity taxed by the tribute is, no longer potential, but non-existent, virtual or fictitious”.
He also insists that the principle of economic capacity is not only preached of the tax system as a whole, but it must be present in each particular tax, in that same budget of taxation. “' Do not fit into our system – the Court has affirmed- taxes that are not borne by any source of economic capacity '”.
Analyzes the impugned provisions and concludes that they establish a fiction of increase in value as the sentence, además, It prevents all evidence to the contrary to the particular. This is because the increase in the value of the soil is determined by the automatic application of the coefficients provided for in the standard to the rateable value of the land at the time of transmission.
Therefore, mere ownership of a field for a temporary period produces, in any case, and automatically, an increase in its value. The formula provided in the standard for calculating the tax causes that this is to be paid equally in those cases in which the value of land has not increased, or has even decreased, a not unusual this-last circumstance as a result of the crisis.
The judgment considers that this result “lacks any reasonable justification to the extent that, to impose on taxable persons of the tax obligation to bear the same tax burden corresponds to situations arising from the passage of time increments, in fact expression economic situations are subjecting to taxation, which directly contradicts the principle of economic capacity that the Constitution guarantees in the art. 31.1″.
The Court declared partially unconstitutional and null the impugned provisions; This is, “only when subject to taxation expression situations of economic capacity, preventing taxpayers to prove that there was actually an increase in value”.
It therefore corresponds to the legislator, following the publication of the judgment, carry out the modifications or adaptations of the legal regime of tax that allow not subject to taxation situations of lack of increase in value of land in urban nature.
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