The plusvalia tax is produced by the transfer of a property to another person. The one who has to pay would be the seller in case of a sale, or the one who receives the real estate in case of an inheritance or donation. In case the seller is a non resident, the buyer will be considered as a substitute taxpayer.
However, for the third time in the last four years, the Constitutional Court has declared the plusvalia unconstitutional. This time, this body has declared that the way to calculate the taxable base of the plusvalia tax is not according to the Spanish constitution; before declared that it can not be possible to tax the plusvalía when the seller proves that there is no gain in the sale of the property.
This new decision from the Constitutional Court has generated a period of doubt until the Government has approved the new regulation about this tax, including a new way to calculate this taxable base and modifying the last one in order to comply with what the constitutional court ordered.
So, it is possible to find two situations according with the new regulation
- When the seller has a loss on the sale, he is not obligated to pay this tax, but he has the obligation to communicate to the town hall about this loss on the sale and proves it (with the public deeds would be enough)
- In the case that the seller has a gain on the sale, which is the usual case, this seller must declare this situation to the town hall and pay this tax choosing one of the two existing methods – the best of his interest – to calculate taxable base, the real method or the objective method.
The real method is calculated by the difference between the purchase price minus the sale price, taking into account the plot value. The objective method is calculated based on the time lapse the seller owned the house (maximum 20 years) and the new coefficients set by the Government. In each case, the price to pay depends on the Town Hall where the real estate is located as they have the right to apply a maximum type of 30% of the taxable base.
