Those of you who like to read and keep our articles will recall that at the beginning of 2011 we published one with the title: Is the Spanish IHT system discriminatory? What lies ahead? in that article we pointed out that the European Commission had formally asked Spain to change the regulation of the IHT, as it was generally higher when the heir or beneficiary was Non Resident Tax in Spain (irrespective of his nationality).
We understood at that time, as we do now, that the Spanish regulations on Succession and Gift Taxes (IHT) are discriminatory to Non residents in Spain, but not just with them; even among Tax Residents living in different Spanish regions (Comunidades Automonas) merely for the fact of being fiscal resident at a different Spanish Autonomous Community. All this seems clearly inconsistent with the free movement of labour and capital pointed out in articles 45 and 63 of the Treaty on the Functioning of the European Union
We at that time stated as we do now, that this problem took us back to the changes done to the also discriminatory Capital Gain Tax (CGT). All those Non Residents who have paid or will soon pay IHT in Spain, and the tax amount payable is greater than what a Tax Resident would pay, we believe that they have a legal option to claim refund of the overpayment. If the inheritance is currently being handled then the amount to be paid we think should be the same for Non Tax and Tax Residents.
Therefore in this respect, it is quite important to point out, that as published by the Official Newspaper of the European Union (28-04-2012) the European Commission has formally lodged an appeal at the European Court of Justice against the Kingdom of Spain for discriminatory tax treatment in Inheritance and Gifts Taxes when the tax payer is Non Resident.
We relieve this could be the BEGINNING OF THE END OF DISCRIMINATION in the Inheritance and Gift Tax in Spain.
If you or someone you know has paid Inheritance Tax in the past few years as Non Resident or has to pay them soon, then please do not hesitate to contact us.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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