When a taxpayer acquires a home in Spain, he or she can use the website of the Tax Department of the autonomous community they’re in to find out what the property is worth for the purpose of paying the ITP or ISD tax (depending on where it is) and avoid overpaying. However, not all autonomous communities consider this tool valid and may demand an extra tax if they consider that the value of the property is higher.
Some Tax Authorities of the Autonomous Communities provide citizens with an online tool for valuing property for the purposes of the Property Transfer Tax (Impuesto de Transmisiones Patrimoniales or ITP) and the Inheritance and Gift Tax (Impuesto de Sucesiones y Donaciones or ISyD).
This is so that the taxpayer knows which values they must comply with and thus avoid a higher than declared value if the property is subject to a check. This tool has nothing to do with the prior assessment that taxpayers may request under Article 90 of the General Tax Law (Ley General Tributaria or LGT). That prior assessment can be requested online with a user certificate or in person. The administration will be bound for three months by the value it communicates to the taxpayer, as José María Salcedo, partner of the law firm Ático Jurídico, recalls.
The problem arises when some administrations consider that the assessment obtained on the website of the Ministry of Finance (without a user certificate) is not binding. Therefore, the fact that the taxpayer declares compliance with that value does not relieve them of the possibility of receiving a value check. On this subject, there are two Superior Courts of Justice that maintain different criteria.
On the one hand, the High Court of Justice of Galicia welcomes the online valuation of properties. It maintains that there cannot be two procedures for obtaining an administrative assessment – one on paper (or online with a digital certificate), regulated in article 90 of the LGT, with binding effects for the administration, and another by electronic means through the website of the Regional Ministry, but without the need for the individual to identify themselves and not being binding for the tax administration.
For this reason, the Court considers that the only thing that counts is the veracity of the data declared to obtain the administration's assessment. In other words, if the taxpayer correctly enters the necessary data into the web application to identify the property and obtain the valuation, it must have the same effects as those provided for in article 90 of the LGT and must be binding, even if the procedure is done without a digital certificate or without submitting a written statement to the Ministry.
On the other hand, the Catalan Supreme Court of Justice does not give validity to the values obtained through the online tool. The source of this method is the result of applying the valuation method of article 57.1.b) of the LGT (estimate by reference to the values appearing in the official tax registers).
This Court considers that this online assessment tool is aimed solely at the Management Offices of Catalonia, that is, for internal use. Furthermore, it is possible that the regional administration on duty will check the values and estimate a value of the property higher than that reflected in the online tool.
Nonetheless, this ruling is mitigated by the opinion of a certain judge who considers that a value check in cases where the taxpayer has paid taxes in accordance with the online valuation is an abuse of rights, as well as an infringement of the principles of good faith, legal certainty and legitimate expectations, because the taxpayer is offered an online valuation and then finds themselves to have been misled when a value check is performed.
Moreover, this individual opinion considers that the value check would violate article 134.1 of the LGT, which prevents a check if the taxpayer declares compliance with the values published by the administration, in application of any of the valuation methods provided for in article 57 of the LGT.
Possibility of declaring taxes below the title deed value
When a person buys a house, they know that they will have to pay the Property Transfer Tax (ITP), which varies depending on the autonomous community where the house is located. When paying this tax, they may do so for a lower value than that stated in the sale deed, but only if they have verified that it corresponds to the value attributed to it by the regional tax authorities. Having declared its agreement with the published values, the taxman could not initiate the procedure for checking values.
In this regard, José María Salcedo considers that article 46.3 of the Law on Property Transfer Tax, which provides that the value of a property shall be at least that declared in the deed, is a rule of the procedure for value checks. Therefore, if such a procedure cannot be initiated because the property has been declared in accordance with the value admitted by the administration, the article would not be applicable. This interpretation is not accepted by the Tax Agency, however, and must be defended in court.
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