The Supreme Court approves the retroactivity of taxes during the year in which they were approved

The Supreme Court found that it requires a tax in the same year that its regulatory law takes effect does not violate the principle of non-retroactivityas long as yours the tax period is the calendar yearthat it is calculated on the last day of the specified year and that it entered into force before the calculation date.

This is what the higher court of the U.A. pronounces judgment of February 27collected by Europa Press, which refers to the tax on customer deposits in the credit institutions of the Canary Islands, but which can be extrapolated to any tax that meets these conditions.

In this way, the Supreme Court supports the application of new taxes on banking, energy companies and large fortunes, which were finally approved and entered into force in December 2022, but which already apply to the entire financial year.

In the specific case of the Canary tax on bank deposits, Bankinter filed an appeal regarding the time dimension, which consists of determining whether the tax, established by law published on July 1, 2012, was payable in the tax period of that same year. , as claimed by the Administration of the Canary Islands, or on the contrary, it could only be requested from January 1, 2013, as defended by Bankinter.

It does not violate legal certainty

The Supreme Court determines, first of all, that contrary to what the bank postulates, claim tax after the beginning of the tax period (January 1, 2012), does not represent an injury Article 10 of the General Tax Code in connection to the principle of legal certainty.

It is also added that the tax calculation occurs on December 31 of each year, i.e. after the actual determination of the tax, in this case July of the current year. Therefore, the statement of the Community of the Canary Islands is correct, which qualifies that at the time of its creation and entry into force (July 1, 2012) the tax does not affect a fully executed taxable event», the higher court repeats.

It therefore ensures that this is in line with Article 10.2 of the General Tax Code which establishes that, “unless otherwise provided”, tax regulations shall not have retroactive effect and shall apply to taxes “without the tax period beginning with its entry into force and other taxes whose tax period starts from that moment.

Thus, the Supreme Court confirms that the reading of the regulation brings an “obvious conclusion”, namely that, in cases like this, it would not be possible to demand the tax except from the tax period “that began” after its entry into force. However, Article 10.2 of the General Tax Code itself contains a provision that “the contrary is provided for”, as is the case here.

And in this case, the Supreme Court points out, the tax code is “clear”both when determining the date from which the tax becomes effective (July 1, 2012), and when determining the moment of calculation (the last day of the tax period) and the obligation to pay to the account “for the corresponding tax period 2012 (…) throughout the entire month November 2012”.