The new regulation that adapts the legal regulation of capital gains to the recent ruling of the Constitutional Court declaring the unconstitutionality and nullity of some articles of the Law on Local Taxes has been published in the Official State Gazette (BOE).
Royal Decree-Law 26/2021, of the 8th of November.
The main novelties introduced by this regulation are as follows:
a) The objective method of calculating the taxable base of the capital gains tax will be carried out by applying maximum coefficients established according to the number of years of ownership of the land, which will be updated each year, to the cadastral value of the land at the time of accrual of the tax.
In addition, local councils may correct cadastral values to adapt them to their current situation, as well as approve other coefficients to be applied, which in no case may exceed the maximums established by this regulation.
b) Furthermore, this objective system for determining the tax base becomes an optional system for taxpayers, as they are offered the possibility of choosing between this objective calculation method or the real capital gain obtained, understood as the difference between the transfer value and the acquisition value of the land. The municipalities reserve the right to check these values.
Therefore, situations in which there is no increase in the value of the land will not be subject to taxation, and anomalous situations, in which a higher capital gain is taxed than that actually obtained will be avoided.
c) Capital gains will be generated even if less than one year passes between the transfer and the previous acquisition of the property.
This regulation comes into force on the 10th of November 2021.
Therefore, capital gains accrued between the 26th of October (date of the Constitutional Court ruling) and the 10th of November 2021, should be settled at €0, because this is a period in which there has been no possible way of calculating the tax base.
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