Spain’s Constitutional Court Abolishes CGT When Values Do Not Rise

23 May 2017 – Expansión

The Constitutional Court (TC) has abolished the municipal tax on capital gains when there is no increase in value, in the first case that applies to the country as a whole, after several sentences containing the same rulings were issued in autonomous regions.

The High Court unanimously considers that the tax, which raised €2,439 million in 2015, is unconstitutional in these cases, which have been very common since the outbreak of the economic crisis. In theory, the tax is levied on the appreciation in property values when they are sold but, in practice, it is always paid, even when the properties decrease in value. The TC has not abolished the tax per se, but rather has cancelled its automatic application in the event that there is no appreciation in prices.

The Court considers that the tax on the increase in the value of urban land violates the constitutional principle of economic capacity to the extent that it is not necessarily linked to a real increase in the value of the asset, “but rather to the mere ownership of the land for a period of time”. In other words, the mere fact of having been the owner of urban land for a certain period of time necessarily implies the payment of the tax, even when there has been no increase in the value of the asset and, furthermore, even when the asset value has decreased. According to the Court, this circumstance prevents citizens from fulfilling their obligation to contribute “in accordance with their economic capacity (Art. 31.1 CE)”.

For this reason, the Court has declared the unconstitutionality and nullity of Articles 107.1, 107.2 a) and 110.4 of the aforementioned law, but “only to the extent that inexpressive situations of economic capacity have not been excluded from the tax due to the absence of increases in value”. From the date of publication of the sentence, the legislator is responsible, in his freedom to set legislation, for carrying out the “relevant changes or adaptations to the legal framework of the tax that allow for the arbitration of how to not subject situations involving the absence of an increase in value of urban land to the tax”.

Original story: Expansión (by M. S.)

Translation: Carmel Drake

Family War Between The Owners Of La Finca

24 August 2016 – Expansión

An open war is raging between members of the García-Cereceda family, owner of Procisa, the property developer of, amongst other assets, the exclusive La Finca business park in Madrid.

The carve out of the property developer and the subsequent entry of the US fund Värde has represented a new chapter in the battle between Susana and Yolanda García-Cereceda, both daughters of the founder of Procisa, Luis García Cereceda, who died in 2010, and both heiresses of the family empire.

As a result of this latest encounter, a ruling from Commercial Court number 11 in Madrid, on 18 August, decided to partially adopt the injunction requested by Mercedes López, the mother of Susana and Yolanda García-Cereceda, regarding the total carve out of Procisa.

The carve out of Procisa

The carve out was approved at a general shareholders’ meeting held on 26 July 2016. Specifically, the shareholders approved the decision to divide Procisa’s assets between La Finca Global Assets – owner of the carved out company’s real estate assets, which manages the leases of the offices and retail premises; La Finca Somosaguas Golf – which included ownership of a urban development area for luxury residential use that can be executed immediately, known as Casablanca – and finally, La Finca Promociones y Conciertos Inmobiliarios (owner of Procisa’s remaining assets and liabilities).

This carve out plan also involved the entry of the US fund Värde into the office business, as Expansión revealed in April.

This line of business is the group’s most profitable and it includes, amongst other assets, La Finca business park, located in Pozuelo de Alarcón, whose tenants include multinationals such as Orange and Microsoft.

Entry of Värde

Procisa, chaired by Susana García-Cereceda, had reached an agreement to sell 40% of its office business to the fund Várde, with Procisa retaining ownership of 100% of the residential business.

According to that plan, Susana García-Cereceda would lead the two areas. The entry of new members with experience and background in the sector was also planned, to complete the organigram of the new real estate company.

Nevertheless, this decision had not been approved by all of the company’s shareholders. Some voices against the negotiations argued that the complete carve out had not been referred for consultation to the Tax Authorities or other tax bodies to confirm the existence or otherwise of tax benefits in terms of exemption from Corporation Tax.

According to sources close to the opposing shareholders, if there are no tax benefits in terms of Corporation Tax, then the younger daughter of García-Cereceda, Yolanda, and her children, would be “seriously harmed”.

The legal ruling on 18 August requires the Commercial Registrar to suspend the inscription of the corporate operation agreed at the general shareholders’ meeting in July. This decision, therefore, hampers Värde’s entry into Procisa’s office business. (…).

According to the ruling, the suspension must remain in force until the Tax Authorities have issued their binding opinion regarding the existence or otherwise of tax benefits in terms of Corporation Tax. (…).

Original story: Expansión (by R. Arroyo)

Translation: Carmel Drake