Finance analyzes the sentence

Sources of the Ministry of finance brought to RTVE.es are “analyzing the judgment” and is soon to advance future actions, aunque se baraja la posibilidad de pedir un informe técnico a la Abogacía del Estado.

After the statement, the President of the Union of technicians of the Treasury (Gestha), Carlos Cruzado, He pointed to RTVE.es to the Ministry “you need to take some determination” to adapt legislation and that “more reasonable would be use to modify the law of successions and donations as a whole“.

Adds that competition between autonomous communities has led to “very high differences” among residents in different territories and one “new State regulation” You should eliminate discrimination, como recomendó en su día el comité de expertos en su informe sobre la reforma fiscal.

Assigned to the autonomous tax

In Spain, Inheritance and gift tax is a State tax, applicable throughout the national territory, except in the Basque country and Navarra, that it have its own fiscal regime, but is assigned to the autonomous communities, that it may adopt rules, que complementen o sustituyan a las estatales.

The rules of the CC. AA. they can only affect the elements of the settlement of the tax, subsequent to the determination of the tax base. The EC maintains that autonomy can set different tax cuts, que se aplican únicamente en caso de conexión exclusiva con su territorio.

Therefore, succession or donation involved a person in that non-resident in Spanish territory, or that it is intended to a good property located outside the Spanish territory, You can not benefit from these reductions tax. According to the Commission, esta diferencia de trato es contraria a la libre circulación de personas y de capitales.

Given that all communities have exercised their jurisdiction in this regard, the EC holds that the tax burden borne by the resident taxpayer in them is considerably lower than that imposed by State law. This applies only in cases of real contribute obligation (the derivative of the acquisition of property and rights) and in cases where the CC. AA. no tengan o no hayan ejercido sus competencias.

According to the Commission, discrimination occurs when the decedent or donor, the heir or grantee non-resident territory in Spanish and in the case of donations where the immovable object of transmission are located abroad, con independencia del lugar de residencia del sujeto pasivo.

Restriction on the free movement of capital

The EU Court said that, “to not be able to enjoy these tax benefits, the value of that succession or that donation will be reduced” So what “This reduction constitutes a restriction of the free movement of capital“.

Remember also that also constitute prohibited measures, for being contrary to the free movement of capital, which can dissuade non-residents from investments in a Member State or of keep tales inversiones.

To be accepted, the difference in treatment must affect situations which are not objectively comparable or be justified by overriding reasons of general interest. In the Spanish case, the Court considers that no difference there is between the objective situation of a resident and a non-resident that can sustain a difference of treatment, all differential treatment regarding the reductions will lead to discrimination.

The Court does not accept the arguments of Spain relating to the pursuit of the legitimate objective of ensuring the effectiveness of fiscal controls and the fight against tax evasion within the European economic area, porque no se ha demostrado cómo el hecho de que no haya un acuerdo de asistencia mutua en ese sentido podría justificar la legislación atacada por la CE.