The deficit of the Public Administrations reached 4% in the 2016 financial year. As seemed difficult for the Treasury, the Government chaired by Mariano Rajoy had to provide urgent resources to the Treasury to sustain public spending. The Government opted for the approval of a Royal Decree-Law (article 86 CE). This rule is a provisional legislative provision issued by the Government in case of extraordinary and urgent need. In addition to the factual requirement that I just mentioned – the extraordinary and urgent need – the Decree-Law has some material limits that it must not exceed: it cannot “touch” certain issues, including the rights, duties and freedoms of citizens. . regulated in Title I [de la CE]. Let us remember that the duty to contribute to the lifting of public burdens (article 31 CE) is located in the aforementioned Title I.
In the case that I am going to tell you, the scapegoat was the Corporate Tax (IS). Its regulatory law (Law 27/2014) was modified by Royal Decree-Law 3/2016, which aggravated the situation of many taxpayers. The government measures were:
1.- The reduction in the percentage of compensation for negative tax bases from previous years. Specifically, 50% when the company’s turnover exceeds twenty million euros; and 25% if said figure had exceeded sixty million euros.
2.- The obligation to include in the IS tax base the impairment losses deducted in previous years with respect to the shares that the affected company would have owned in the capital of other companies. The integration will be done in fifths each year, with the total term being five years, calculated from January 1, 2016.
3.- The import of deductions to avoid international double taxation may not exceed 50% of the full quota.
Shortly after, the entity Globalia, SA filed a direct contentious-administrative appeal against the Ministerial Order that approved the IS self-assessment model for 2016, which reflected the substantive modifications established by Royal Decree-Law 3/2016. Indirectly, the company requested the declaration of full nullity of the aforementioned Royal Decree for contravening article 86.1 CE. The matter corresponded to the Second Section of the Contentious-Administrative Chamber of the National Court.
For its validity, the Decree-Law cannot exceed two limits. The first is of a factual nature (the enabling assumption of the “extraordinary and urgent” need). The second is a limit material. As we have seen, there are matters that this provisional provision cannot regulate, such as the impact on the freedoms and rights of citizens included in Title I CE. This is the case of the obligation to contribute (article 31 EC). Obviously, the validity of Royal Decree-Law 3/2016 is unquestionable with respect to the enabling fact budget. Many more problems arise from the material limit, and this was understood by the judicial body, which raised before the Constitutional Court (TC) – by order of March 3, 2022 – a question of unconstitutionality, which was entered in the registry of the TC on March 19. following April.
The issue has prospered in its integration. For its estimation, the TC (judgment of January 18, 2024) highlights the following extremes:
1.- The IS is a “basic pillar” of direct taxation in Spain.
2.- The tax base is an essential factor in the structure of any tax. In this case, the upward modification of the base (due to the restriction imposed on the offsetting of tax bases from past years and the obligation to reverse the impairments deducted, also in previous years, in the company’s property portfolio), increases the taxpayer’s liquid payment. Let us remember that determining the tax base is essential to measure the taxpayer’s economic capacity.
3.- The imposition of a limit on deductions to avoid double taxation also affects the liquid quota.
“In short, the measures regulated in the precepts that are questioned in this process have had, both together and individually considered, a notable impact on the structural elements (tax base and liquid quota) of a fundamental piece of the tax system such as the corporation tax, thereby affecting the essence of the duty to contribute of those liable for this tax” (FJ 3).
Regarding the temporary effects of the declaration of unconstitutionality (FJ 4), the TC, also on this occasion, inherits the disastrous criterion of STC 78/2020, “due to the requirements of the principle of legal certainty.” In such a way that those tax obligations accrued by the IS will not be susceptible to review based on this resolution, which at the date of issuance of the same have acquired signature by means of a sentence with the force of res judicata (article 40.1 LOTC) or administrative resolution. firm. Neither can assessments be reviewed that have not been challenged on the date of this ruling, nor self-assessments whose rectification has not been requested on the same date.
What (irregular) means does the TC use to deny bread and salt to the defrauded taxpayer? Simply three. Arrogate powers to the organic legislator to expand non-reviewable assumptions. Secondly, cutting short the expectations of refund of unduly paid fees, flagrantly violating its Organic Law (article 38), which grants general effectiveness to resolutions that put an end to a procedure from their publication in the BOE. . (not from the moment they are approved). And, finally, invoking the protection of legal certainty simply as a style clause, without offering a single plausible argument about the threat that would loom over legal certainty if the TC had not extended to the maximum the irrevocability of the situations that arise. they produce. under the annulled law.
Judge Enrique Arnaldo has formulated a dissenting opinion on this issue. The ruling of the TC has declared the unconstitutionality and nullity (article 39.1 LOTC) of the regulations subject to its prosecution. The declaration of unconstitutionality only has future effects: the norm declines and is expelled from the legal system. On the contrary, the declaration of nullity produces the legal fiction that the law declared null and void has never existed, so it has not produced any effect from its promulgation until its extinction, which would be, let’s put it that way, sublime acts and infections. . of the sex of angels (and angels).
Only singular cases, such as situations created by virtue of the rule subsequently annulled, are intangible due to the effect of res judicata (article 40.1. LOTC). Here nullity does not produce the effects associated with said legal institution. However, the Court, since STC 45/1989, has imposed an excessive interpretation of its powers that, despite its expulsion from the legal system, retains, since its promulgation and without legal authorization, its previous effectiveness, especially in the field tax.
The protection of legal security cannot serve as an excuse to disregard justice, which is one of the highest values of the legal-political system of our country (article 1.1 CE). We all know that there is a particular dimension of tax justice (article 31.1 CE). The TC has dealt a fatal blow to taxpayers who complied with the now-annulled regulations without their right to compensation being recognized. The TC has kicked legitimate trust in institutions and has made people who fulfilled their legal obligations without protest worse off than those who challenged acts based on them. You cannot treat those who are exactly the same unequally. Like Robert Redford and me.
