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Comments on the ruling of the Constitutional Court regarding the shielding of tax provincial legislation
Sunday, 16 de October de 2016

Analysis has begun of the ruling of the Constitutional Court of 23 June last, which dismisses the appeals lodged by the Autonomous Communities of La Rioja and Castilla-León, by asserting the constitutionality of the so-called “shielding” of tax provincial legislation. Iñaki Alonso Arce, in last July’s issue of Forum Fiscal nº 222, positively assesses the contents of the ruling in his article “El Concierto Económico y la Constitución” [“The Basque Economic Agreement and the Constitution”], even though, to quote him, “it is true some misgivings could be raised about part of its legal arguments…“.

The Carta Tributaria legal advisor includes an editorial on the same theme in its August issue. Entitled “The Constitutional Court’s jurisdiction regarding the tax provincial legislation of the Basque provinces“, where they state that the “it cannot have been easy for the court to have drafted the ruling that we have today. And it cannot have been easy to do so as it has done, unanimously. The reason is clear: we are not dealing with a problem that is strictly legal in content. As always when delving into provincial legislation, the constitutional political background becomes of key importance, to the point that it absolutely conditions the legal debate. Our Tribunal has reached a solution that means defending the charter system in the strictly constitutional framework“.

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The Constitutional Court endorses the “ring-fencing” of the Provincial Laws
Monday, 27 de June de 2016

In its ruling of 23 June, the Constitutional Court found for the constitutional validity of Act 1/2010, of 19 February, which entrusted the review of provincial tax legislation to the jurisdiction of the High Court, thus dismissing in full the supposed breaches of different Articles of the Constitution, alleged by the appellants, the Autonomous Communities of La Rioja and Castilla y León.

CC ruling

Rulings and doctrine in regard to VAT location rules and discrimination in the new VAT settlement system for imports
Monday, 6 de June de 2016

In February the Supreme Court handed down to rulings concerning the location of certain deliveries of goods that to some extent modify the criteria maintained in the resolution of the Rover case. In the first ruling, dated 3 February 2016, the court follows the argument presented previously by the Court of Arbitration of the Economic Agreement of Navarre and rules the transfer of gas ownership is understood to have taken place at the time when the gas enters the facilities of the purchaser. It is therefore considered that in training activities goods are made available in the place where the meter is located. In the second ruling, dated nine February, the Supreme Court also confirms the criterion maintained by the Court of Arbitration of the Economic Agreement and rules that the actual tank is the point of delivery of the fuel traded, from where is then made available to purchasers, so the operation is understood to be located at that point for the purpose of VAT.

In the wake of these two sentences, issue number 216 of the Forum Fiscal journal contains an article by Gorka Garitaonandia (“Cambio jurisprudencial en la doctrina del Tribunal Supremo en relación con la sentencia “Rover”. Régimen del depósito distinto del aduanero en el 2016″ – “Change in jurisprudence in the doctrine of the Supreme Court in regard to the “Rover”rolling. Deposit system other than customs deposit in 2016“) that analyses the development over time of the criteria for a location used by the Supreme Court from the Rover ruling to these recent rulings. In the same issue of the journal Iñaki Alonso Arce examines the ruling of 9 February in his article “Las entregas de productos energéticos por comercializadores y la sentencia Rover: una nueva perspectiva tras la sentencia Disa” [“Deliveries of energy products by traders and the Rover ruling: a new perspective following the Disa ruling“].

Finally, in its ruling of 9 February the Supreme Court rules as unlawful the regulation contained in Royal Decree 1073/2000 1419 December establishing the possibility of opting to include VAT quotas on imports at the time when the self-settlement return is submitted, by contrast with the previous system under which VAT on imports had to be paid in to the tax authorities at customs and tax payers had to wait until the self-assessment for the period to recover it by offsetting or refund. The Supreme Court understands that there is discrimination against taxpayers who pay their taxes exclusively to the provincial treasuries, as they are excluded from the new system. Aitor Orena looks in depth at the arguments underlying the ruling in his article “Discriminación en el IVA a la importación” [“Discrimination in VAT on imports“] in the same issue of Forum Fiscal.

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The High Court of Justice of the Basque Country yet again dismisses the petitions to overrule the 2008 Net Worth Tax in Gipuzkoa
Saturday, 14 de May de 2016

The decision to uphold the 2008 Net Worth Tax adopted by Gipuzkoa Provincial Council, making the province the only one in the Spanish State where that tax concept remained in force, led to a barrage of appeals, arguing the unconstitutionality of that decision as it breached the principle of equality, as well as the principles contained in Article 3 of the Basque Economic Agreement relating to the general fiscal structure and the coordination and harmonisation rules.

Those appeals were then fully dismissed by the Administrative Litigation Chamber of the High Court of the Basque Country. However, its rulings were overturned by the Constitutional Court as it found for the petitions for constitutional protection lodged against them, as it ruled that the right to the effective judicial protection of the petitioners had been breached, a constitutional principle contained in Article 24 of that legal text, as it could not find sufficient grounds for the Court of First Instance to hear the unconstitutionality issue.
After the procedures had been sent back to the High Court of Justice, the Administrative Litigation Chamber has again ruled in the same way as initially. However, it has had to make its case for not finding for the aforementioned breach of the principle of equality and of the general principles contained in Article 3 of the Economic Agreement.
For further details, see the Ruling of the Constitutional Court No. 239/2015, of 30 November, and those of the High Court of Justice of the Basque Country of 16 July 2012 and of 24 February 2016.

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New Seminar on the Economic Agreement and Local Government
Monday, 4 de April de 2016

Yet again this year, the Economic Agreement and Provincial Treasuries Documentation Centre, under the Department of Contemporary History of the UPV (University of the Basque Country) in conjunction with the Tax and Financial Law Division of the Department of Public Law, is organising a seminar entitled “The Economic Agreement and the Local Councils of the Basque Country” on the 12 April. The seminar is highly topical, as the political agreement has just been announced, by means of which the Basque Parliament shall pass the only legislation pending to culminate the regulation of the Basque institutional framework, nearly 36 years after the passing of the Basque Statute of Autonomy.

Programme