Law 38/2022, of December 27, has created (article 3) the Temporary Solidarity Tax for Great Fortunes (hereinafter IGF). The legislator has pulled out of his sleeve a little monster with planned obsolescence, since the government majority (et alii) is only interested in outlining an electoral nod to their neighborhood in a year as “hot” as 2023. And we all know that a “wink” lasts less than a breath. Like the IGF. It is not the first time nor will it be the last in which the head of the troop dislodges a fiscal rabbit from his top hat. But, frankly, I think that this time the captain general of the fist and the cardboard artichoke has been too funny. If someone wants to buy his basketball tracksuit in exchange for his ballot, let him sell it to them. Nothing to object. It is more doubtful to put the institutions of the State at the auction, for payment in his electoral account, beginning with the laws. No one should auction off what belongs to everyone.
The new tax will only be applicable to the two years after the date of its entry into force. It is true (section 23 of article 3 of the Law) that, after the two years, the Government will evaluate the results of the IGF for the purpose of proposing its maintenance or suppression. But, in my opinion, it is just a soap bubble to make Sánchez’s intention, clearly clear, to be the peacock in the local and regional elections on May 28th and, of course, in the legislative ones that will be held, at the latest, in December. In any case, the taxable event of the IGF is the ownership by the taxpayer of a net worth of more than three million euros on the date of its accrual. As, in addition, there is a minimum exemption of 700,000 euros and – of course – we are talking about an individual tax, and leaving “single” taxpayers on the sidelines, Law 38/2022 aims against marriages with a flow of about eight million towards above, which does not seem like turkey booger to me.
The IGF will accrue on December 31 of each of the two years of its short life. As Law 38/2022 entered into force on December 28, the first accrual of the tax is now a thing of the past (December 31, 2022). We do not yet know when the self-assessment period opens. But I am convinced that it will be shortly before May 28, 2023, the date of the local and regional elections.
Be that as it may, the IGF faces the delicate problem of its retroactivity. It can be affirmed without any fear of falling into a mistake that there is no constitutional prohibition that tax laws have retroactive force (STC 173/1996). However, retroactivity always collides with principles enshrined in the Constitution, such as legal certainty (article 9.3 CE). But things, except for the supermen who have already gone down in history for resurrecting the dead buried under the sign of the cross in mountain valleys, are far from being unequivocal. Although taxpayers do not have the right to maintain tax regulations, they do have the right to legitimate legal trust in the laws and institutions, since otherwise they could not adjust their economic behavior to a temporary reference. Otherwise, their forecasts would collapse like a sand castle inundated by a storm. At this point, it is convenient to underline the difference in degrees and the specific circumstances that occur in each case of tax retroaction.
Regarding the first extreme, and in relation to the annual taxes whose accrual coincides with December 31, we can speak, on the one hand, of improper or medium-grade retroactivity and, on the other, of an authentic or medium-grade retroactivity. maximum The first alludes to the legal modifications that take place after the beginning of the fiscal year but before the accrual of the tax. The maximum degree retroactivity (the legal modification transfers the date of accrual of the tax) can only prosper -according to the Constitutional Court (TC)- “if there are qualified demands of the common good or general interest”. The sacrifice of legal certainty on the altar of retroactivity is only justified if the supreme interest of the “res publica” is seriously compromised.
To a periodic tax -this is the case of the IGF- that enters into force 361 days of the calendar year and 4 days after its first accrual, only the mother superior of the Ursulines, Sister Pluscuamperfecta of Strict Obedience, would deny her attributes to enter in the Order of Complete Retroactivity. Only very serious events capable of jeopardizing the durability and salvation of the country – such as a wave of bubonic plague, an invasion of the territory by the Moroccan army or the storming of the Moncloa palace by a horde of collateral descendants of Ramiro Ledesma Ramos -would be worth so that a provision that is worse than a Decree-law launched downhill would be in a position to pass the constitutionality test. “Only extraordinary requirements relevant to the common good could authorize such a degree of retroactivity” (STC 9/2019).
In addition, STC 182/1997 (FJ 12) disqualifies legal retroactivity, in this case simply of a medium or improper degree (for breaking legal certainty, FJ 13), when “the regulatory change occurs at a very advanced time of the tax period. In the matter debated by the TC at the time, a modification of the personal income tax was achieved on November 25, 1992, but with effect from the previous January 1. As we have seen, the IGF goes further and comes indecently close to the end-of-year grapes.
Ready to obey the order of the incomparable “Butanito” – “Watch out for the data!” -, I return to the BOE to see if it detects fresh traces of the crime. According to the Preamble of the Law, there are two purposes to which the Tax on Great Fortunes aspires. With your permission, I will go in parts. The IGF is a baroque tostón and the reader deserves a rigorous interpretation that, despite this, follows the trail of the racy serials.
The first reason used by the legislator is of a collection nature. It is about “demanding, in these times of energy crisis and inflation, a greater effort from those who have greater economic capacity.” It is the message, undressed, from two parliamentary groups that have been and are necessary collaborators in the governmental and continuous robbery of not adjusting the personal income tax tax in recent years to the enormous inflation rates that we suffer by doing less than all less Public (?). The Antichrist of prices rises to the heights, from food and fuel to men’s clothing, but the scales of state income tax, the exempt minimums and the reductions or deductions expressed in money are the same as fifteen years ago. Caramba!
Isn’t it a mockery that humiliates common taxpayers to throw them the leftovers from the rich man’s table, if we compare them with the general rate of increase of 15.1% (fiscal year 2021) and 15.9% (until November 2022) of the income managed by the Tax Agency in a period characterized by economic slack caused by the pandemic and the war in Ukraine? The fault lies not with the far-right chachachá, but with inflation, “the tax on the poor.” Is it not an insult to national intelligence that, while inflation has filled the Treasury coffers to overflowing (18.9 billion euros in 2022, according to the economist Javier Santacruz), a “tax on the rich” is established that will collect – according to government forecasts- 3,000 million euros in two years? Is not the specific effect on tax collection an intolerable cruelty (a fiscal policy of “support for the most vulnerable”), when the Government, with a sinister hand, is “stealing” them in bulk, puffing up to earn money thanks precisely to to inflation? Why not a tax that burdens “the benefits fallen from heaven” obtained by the Treasury of the sugarcane Mª Jesús Montero?
We continue. “The second purpose [del IGF] –The Preamble to Law 38/2022 tells us (theoretically seriously)- it is harmonizing, with the aim of reducing the difference in the tax on the assets of the different CCAAs, especially so that the tax burden of resident taxpayers in those CCAAs that have defiscalized [sic] In whole or in part, the Wealth Tax does not differ substantially from that of CCAA taxpayers who have not opted to reduce the tax on said tax.”
The foregoing is a statement that implies petrine failure (of “error” or “failure”, not of the magnificent “pichula” (or falete) of the Nobel Prize winner Mario Vargas Llosa de Preysler, famous ex-Maoist and ex-critor. I support four arguments for Validate, if possible, my previous reflection:
1.- According to the Government, the current system of regional financing (propelled by José Luis Rodríguez Zapatero at the request of Catalan nationalism), has been leaking everywhere since its immaculate conception in 2009.
2.- If the previous premise is true, as it seems, why hastily create a special tax, when the most plausible thing would be to modify –“harmonizing” it- the current regional financing system? The IGF doesn’t make the “Occam’s razor” cut. What a beating Sánchez gives to the principle of legislative economy!
3.- Why so much urgency in harmonizing precisely now if Law 22/2009 established (Additional Provision 7) a five-year review that has never been carried out? Why do with a new type of tax and with retroactivity to 2022, when it could be done calmly and in an orderly manner in 2014?
4.- Harmonize? Ok, if there is no remedy for me. But only for two years? And then, more of the same? Remember that the name of the new tribute is accompanied by the adjective “temporary”. Wouldn’t “Temporal Harmonization” be an excellent title for a second version of “Dinner for Idiots”?
It should be remembered that the justification of fiscal retroactivity due to the existence of a financial crisis is not a sufficient reason to project the law on the past (STC 121/2016, FJ 4). The rhetorical and generic invocations of damages –in our case, inflation and the cost of energy supplies- that supposedly make retroactivity necessary are banal and lack any virtuality. Even the CJUE (judgment of April 6, 2005) rejects retroactivity if it violates the principle of legitimate expectations (even though it seeks “greater tax justice”).
concluded. The Temporary Solidarity Tax for Great Fortunes is the best anesthesia for the poor invented in Europe. Or what is the same: the new tax is a placebo for the middle and lower classes, and a shot of coarse salt in the rear of the rich people of Madrid and Andalusia. For this reason, and not to remove past waters, the face of Pedro Sánchez will be carved on reinforced concrete walls. And, since there are not two without three, Don Pedro’s fiscal policy will beat in 2023, if he does not sing a black swan, the world collection record. And all thanks to inflation. What genie would come out of Aladdin’s lamp today if he were not a fictional character?
