Temporary solidarity tax on Great Fortunes.

On 28 of December 2022, the Official State Bulletin (BOE) published Law 38/2022 which creates, among other things, the Temporary Solidarity Tax on Great Fortunes (hereinafter, the Solidarity Tax) and which came into force on 29 December.

Law 38/2022 has created the announced Solidarity Tax as an extraordinary and temporary tax (2 financial years), with the possibility of becoming permanent, and at the same time, as a state tax complementing the Wealth Tax, ceded to the Autonomous Communities, which in fact will leave without effect the Wealth Tax bonification approved in the Autonomous Communities of Madrid and Andalusia (100%) and Galicia (25%, which will increase to 50% in 2023).

The Solidarity Tax is regulated in Article 3 of Law 38/2022 and we would highlight the following aspects:

– It is indicated that the taxpayers are those who are liable to Wealth Tax, so it therefore seems clear that taxpayers are included by real obligation, in other words, non-residents who are holders of assets in Spain.

– The tax is imposed on net patrimony exceeding 3.000.000,00 euros. The Law refers to the Wealth Tax Law to apply exemptions and determine the taxable base.

– Individuals resident in Spain are entitled to a reduction of 700.000,00 €, in addition to the exemption of 300.000,00 € corresponding to the habitual residence. In practice, this reduction (700.000,00€) and exemption (300.000,00 €) implies that for a resident in Spain to be taxed under the Solidarity Tax the net worth of the resident must exceed 4.000.000,00€.

– The Law establishes that the tax is due on 31 December of each year and will affect the net assets of the taxpayer at that date.

– The tax will be applicable in the first two financial years in which it becomes due from the date of its entry into force. Taking into account that the Law entered into force on 29 December (one day after its publication), presumably the first tax liability would occur on 31 December 2022.

– Paragraph eleven establishes the scale of the tax rate between 1,7 % and 3,5 %.

– In those Autonomous Communities where the Wealth Tax is not subsidised, the taxpayer may deduct from the Solidarity Tax the amount paid for Wealth Tax.

The Law has modified section one of article 5 of the Wealth Tax Law, in order to impose a tax on shareholdings in non-resident entities with underlying real estate assets located in Spain. As a result, the purpose is to tax the shareholdings of a non-resident entity that owns real estate in Spain.

Conclusions:

The Solidarity Tax, of a State character, abolishes the Wealth Tax bonification approved by some Autonomous Communities, among them Andalusia, although the new tax will only be applicable to taxpayers with a net patrimony of more than 3.000.000,00 €. However, considering the 700.000,00 € reduction, plus the 300.000,00€ exemption corresponding to the habitual residence, in practice, for a resident in Spain to be liable to pay the Solidarity Tax he must have a net assets of more than 4.000.000,00€.

The implementation of this new State tax generates doubts as to its constitutionality, due to the possible vulnerability of the tax competence regarding tax matters of the Autonomous Communities.

Furthermore, the proximity of its implementation on 29 of December to the date of chargeability of the tax, 31 of December, could affect the legal security of taxpayers, a circumstance that could lead to questions about the legality of the tax.

It would therefore be advisable to consider the possibility of impugning the self-assessments of the above-mentioned Solidarity Tax.

Finally, we would question whether the implementation of this new extraordinary and temporary tax is justified, due to the dissuasive effect that it could have on investments, especially in Andalusia.

Marbella, 30th of December 2022