Judgment against Spain regarding inheritance and gift tax

This last September 3rd the awaited judgment of the Court of Justice of the European Union (CJEU) on the appeal made by the European Commission against Spain, in relation to the Spanish legislation on Inheritance and Gift Tax (Case C-127/12), was published.

Said judgment of the CJEU decides:

To declare that the Kingdom of Spain has not complied with its obligations pursuant to articles 63 TFEU and 40 of the Agreement on the European Economic Area of 2nd May 1992, by allowing differences to be set in the tax treatment of gifts and inheritances between resident and non-resident successors and grantees in Spain, between resident and non-resident deceased in Spain and between gifts and similar disposals of real estate property located in and outside Spanish territory.

The judgment brings the process started in 2007 to an end, thus sustaining a breach of European Law, by maintaining that the rules on jurisdiction laid down by the legislations of the autonomous communities go against the principle of free movement of capital, as European residents are excluded from their application.

As for the foreseeable consequences of this judgment we must highlight:

  1. Spain’s obligation to change its current legislation on the assignment of taxes to the autonomous communities:

The new regulation on applicable law (autonomous or state) must allow the same legislation to be applied to EU residents as to Spanish residents.

  1. With regard to the tax payments made by non-residents prior to the judgment that could not have a more beneficial autonomous regulation applied to them:

We anticipate that appeals will begin to be made against the assessment of payments already made by European residents, requesting equal treatment and the appropriate refund of any excess paid.

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