I purchased a property on the 15th of March 2008 in Javea, Alicante, for a price of 150.000€ (as stated on the Notary’s Deed). The Tax Authorities have sent me a penalty notice as they consider that the real/true value of the property was 213.000€. I am now being asked to pay 7% transfer tax of the difference, plus interest and penalties. I have been told that we cannot challenge the penalty – is this right? If not then what can I do? Should I contest the Tax Authorities’ decision or it is not worthwhile?
Thank you for your email. We understand that the Tax Authority from the Land Registry where your property is registered has sent to you a notification reviewing the value of the property transferred (“comprobación de valores”). That notification has resulted in a Complementary Tax Liquidation (“liquidación complementaria”) made by the Taxman, where they are asking you to pay 7% transfer tax (Transmisiones Patrimoniales”) on the difference between the value that you have declared on the deed (150.000€) and the value reviewed or market value as per their own valuation: (213.000€) plus interest.
As should appear on the notification that you have received from the Taxman, this liquidation could be appealed by means of a (Recurso de Reposición) Reposition Appeal or by means of a Economic-Administrative Claim (“Reclamación Económico- Administrativa”), so yes, you can contest the decision, initially in the said two ways.
As you will understand it is not possible to give you any advice without checking the papers that you have received, but in general, we could say that quite often the Tax Authorities do not make their decision according to the law and the chances to successfully contest this kind of penalty decision in this specific field are quite high.
Normally the main problem and lack of legalities of these kinds of resolutions it is that are not capable of being properly justified by the Taxman. The administrative acts agreed by the Administration, like in your case, should explain to you in detail, which are the legal basis and the facts that have given rise to the penalty.
An important number of Court Precedents have already clarified how the interpretation the Tax Laws should be, and when it should be considered that a decision on the penalty proceeding has been properly justified.
The National Audiencia (Audiencia Nacional) on its Order of the 31st of March 1998 said that when the Taxman is reviewing the value of an asset, it is not enough that they use a standard, general or stereotypical explanation. It must explain the specific criteria used by the Taxman in the specific cased to fix the value, and also the qualifications of the person that grants the report upon which the Tax Authority decision is based. We have the right to know the criteria used by the taxman as if they do not let us know, we cannot contest, accept or just understand their decisions, and an abuse could have taken place.
Another interesting question it is the fact that some Courts, such as the Highest Court of the Valencian Community (TSJ Comunidad Valenciana) in an Order granted on the 16th of March of 1994 understood that it is necessary to carry out a personal and direct survey and inspection of the property by the Taxman (or the surveyors appointed by them).
Normally most of the time the Taxman will review the value and issue the new value without a site visit, using general rules or coefficients, and just copy-pasting the precedent that they use. Being therefore quite common that the tax authorities review the value of the assets without complying with the above mentioned criteria of the courts explained above, it is also quite common that many Penalty Tax Proceedings based on the revision of the value of a property are in a breach of the legal principles. This arguably leaves the citizens who are facing the proceedings unable to defend themselves in front of the taxman, opening up the possibility of having the penalty declared void.
Therefore, if you receive a notification from the Taxman reviewing the value of a property and charging you a penalty, there may well be quite a lot chances to fight it with success if this is your case. Please do not hesitate to contact us to study your case in detail.
The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.
White & Baos
Carlos Baos (Lawyer)
Tel: 966 426 185
(Located at the Glorieta Square end of Marques de Campo)
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