For those who do not know, the “Impuesto sobre el Incremento de Valor de los Terrenos Urbanos”, more commonly referred to as the “Plusvalía” Tax, is a local capital gains tax on the value of urban land, levied when a property in Spain is sold, inherited o gifted. However, the gain being taxed was not a real gain, but rather a fictitious, which resulted in the tax always being owed irrespective of whether there had been an actual gain as a result of the transaction.
In 2017 the Constitutional Court started by ruling that levying the tax when there was no real increase in value of the property (e.g. when the property is sold at a loss) is unconstitutional, although it was not particularly clear about when it should be considered that such an increase in value exists (see our post «Plusvalía» Tax declared unconstitutional in certain cases).
The Constitutional Court ruling of the 26th October 2021 has declared the method of calculation of the “Pluvalía” Tax unconstitutional, thereby cancelling the tax. However, much like the ruling on mortgage floor clauses, which was eventually overturned by the European Court (see our post “Floor clauses” in Spanish mortgage contracts: What are they? What do they mean? What can you claim?…so many questions.), this ruling is yet another example of the politicization of the Constitutional Court to protect public funds.
Despite having ruled the method of calculation to be unconstitutional, the ruling also states that tax bills issued before the date of the ruling will not be subject to revision when a court ruling with the force of res judicata or a final administrative decision exists, which is usual an legal in such cases. However, the ruling goes beyond this stating that provisional and final tax assessments not appealed before the date of the ruling will also be considered “consolidated positions”, and therefore not subject to revision. This results in denying individuals who have received a “Plusvalía” Tax assessment in the last 4 years the right claim any part of it back in the huge majority of cases, or even to have the assessment cancelled in the cases where the amount has not even been paid yet.
This limitation has shocked the Spanish legal community, given that Spain was already held accountable in the almost identical instance when the Constitutional Court tried to limit such claims in the matter of the mortgage “floor clauses” by the European Court of Justice, when they reversed the court’s decision for being contrary to national and EU law. It is therefore no surprise that there is already talk of taking the decision to the European Court.
The ruling is frankly embarrassingly in breach of Spanish and EU law, as that which is unconstitutional is null and void, and we can only hope that this injustice will be remedied by the European Court.
Some people may be concerned as to whether their residency application, after the 31st December 2020, will still be covered by the Withdrawal Agreement.
Well the Spanish Foreign Office has made it clear that as long as the applicant can prove, by any legally admissible means, that they were residing in Spain before the 31st December 2020, their application will be covered under the terms of the Withdrawal Agreement. Specifically, if the applicant was registered on their Town Hall census (“padrón de habitantes”) or they had an existing work contract before said date, this will be sufficient evidence, although other means of proof are possible.
In this instance, this means that these applicants will only need to meet the residency requirements as an EU citizen and they will be able to apply from Spain. See our post Living and working in Spain for more information.
However, if the applicant’s entry into Spain takes place after the 31st December 2020, they will have to apply for the appropriate residency visa through the Spanish Consulate in the UK, before traveling to Spain. In this case, if the applicant has travelled to Spain without the visa, they will be entitled to remain in Spain for up to the 90 days permitted under the Schengen rules, but they will need to return to the UK for the residency visa application, as these applications require a physical appointment at the Spanish Consulate in the UK.
If you are interested in applying for residency in Spain and need further guidance, we recommend you seek the assistance of a legally trained professional.
The general rule is that for any official document issued in a foreign country to be valid and recognised in another, the document will need to legalised, or in the case of countries party to the Apostille Convention apostilled.
Exemption within the EU
As part of the EU’s administrative cooperation EU Regulation 2016/1191 came into effect on the 16th February 2019, simplifying the circulation of public documents between EU member States, and it applies to:
Administrative documents (such as certificates)
Notarial acts
Judgments
Consular documents
Said Regulation establishes an exemption from the Apostille, between EU member States, for these documents when they relate to the following subject matters:
Birth
A person being alive
Death
Name
Marriage (including capacity to marry and marriage status)
Divorce
Legal separation or marriage annulment
Registered partnership (including capacity to enter into a registered partnership and registered partnership status)
Dissolution of a registered partnership, legal separation or annulment or a registered partnership
Parenthood
Adoption
Domicile and/or residence
Nationality
Absence of a criminal record
Right to vote and stand as a candidate in municipal/EU Parliament elections
Furthermore, the Regulation also establishes an exemption from translations, under certain conditions. This means that if the original document is not issued in a multilingual format, you will be able to request a Multilingual Standard Form from the issuing authority, which saves on translation costs.
What about the UK?
The UK was of course an EU member State at the time that the Regulation was passed, but some people may be wondering if this exemption continues to apply to documents issued by UK authorities after Brexit.
Said Regulation was applicable in the UK immediately before the implementation period completion day (31st December 2020), which means that, in accordance with Section 3 of the European Union Withdrawal Act 2018 and Section 25 of the European Union Withdrawal Agreement Act 2020, the Regulation forms part of “retained EU law” and continues to apply after the 31st December 2020, until further notice.
As we all know, the Brexit transition period means that UK nationals are able to enjoy their rights of free movement in Spain until the 31st December 2020. What you may not know is that UK nationals and their family members residing in Spain under the conditions laid down in the Withdrawal Agreement before the end of 2020 shall not be required to apply for a new resident status or to submit to a new documentation process. This means that anyone in possession of a green EU citizen registration certificate (A4 or card size) can use this document post-Brexit to establish their rights under the Withdrawal Agreement.
However, although not required to, they will be entitled to receive a residence document expressly reflecting their status as beneficiary of the Withdrawal Agreement (i.e TIE card).
This means there a three scenarios in which a TIE (“Tarjeta de Identidad de Extranjero”) card can be applied for by a UK national:
1. Those already in possession of an EU citizen registration certificate (green A4 page or green card without photo), but have not been legally residing for 5 years.
These people are able to request a TIE card, which will be issued for a period of 5 years and once they have been residing in Spain legally for 5 years they will be able to apply for permanent resident TIE card.
2. Those already in possession of an EU citizen registration certificate (green A4 page or green card without photo) and have been legally residing for 5 years, or possess a permanent residency certificate.
These can apply for a TIE card valid for a period of 10 years.
3. Those who do not possess an EU citizen registration certificate (green A4 page or green card without photo) and are applying for residency for the first time.
All applications submitted before the 31st December 2020 will be considered under the existing regulations for EU citizens. In the event that the application is successful these will be issued with a TIE card valid for 5 years.
It is very important that any UK nationals considering applying for residency move swiftly to ensure their application is able to be submitted before the end of the year.
Furthermore, as far as current residents go, although not required, it is advisable that they apply for their TIE card, as this will greatly facilitate matters such as travel and dealings with the administration.
We always advise you engage a legal professional to manage your application, especially now that the issue is so time sensitive, to avoid unnecessary complications and delays.
As we all know after the approval of the Brexit Withdrawal Agreement the UK now finds itself in a transition period which will last until the 31st December 2020, assuming that it is not extended. During this transition period UK citizens can continue to live, work and study in the EU as they did before the 31st January 2020, but it is important for those who have not done so yet to start preparing for their stay in Spain after the end of the transition period.
Legal residency and NIE
If you are living in Spain, but have not yet obtained your legal residency certificate (green A4 or card size document) you can still do so before the 31st December under current EU regulations, which we highly recommend. Any application made after this date, unless the transition period is extended of course, will be considered under whatever new regulation is agreed between the UK and EU, or under Spain’s current regulation for non-EU citizens if no agreement is reached on residency. This could mean a substantial increase in minimum income requirements, employment law requirements, etc. depending on the basis for your residency application.
The NIE document (white A4 document), as you will already know, is not proof of residency and is a way of assigning a legal and tax identification number to non-residents, which is required for certain transactions, such as buying a property, registering a vehicle, etc. The regulation surrounding this document will not change after the 31st December, as it is already a document which has exactly the same requirements for EU and non-EU citizens alike.
Fiscal residency should not be confused with legal residency. You are considered to be a tax resident of Spain if you spend more than 183 days of the year in Spain.
Life-long healthcare rights in Spain have been guaranteed to those who are resident in Spain before the 31st December, provided they remain a resident.
Pensions
You can continue to receive and can still claim your UK State Pension if you live in the EU. If you are resident in Spain by the 31st December you will get your pension uprated each year as long as you continue to reside here, and even if you start claiming your pension on or after the 1st January 2021 as long as you meet the conditions set out in the new State Pension guidance.
Driving license and vehicle registration
Once you become a legal resident in Spain you are required to exchange your UK driving license for a Spanish one. Again, before the 31st December this can be done in the same conditions as before under the regulation of EU license exchanges, which is to say a straight exchange of one for the other.
Equally, if you are a resident or spend more than 6 months a year in Spain you are required to register your vehicle in Spain.
It is essential, even more so if you are a Spanish resident or in the process of obtaining residency, to make sure you have a Spanish will in place for your assets in Spain with an express choice of law clause allowing your inheritance to be governed by UK law. The importance of this is addressed in more detail in our post “Why is it more important than ever to have a Spanish Will?”.
The majority of regional Inheritance Tax allowances that UK citizens currently enjoy in Spain do not apply to non-EU residents. This means that, save for a tax agreement to the contrary, UK residents will have Spanish State Inheritance Tax regulation applied to their inheritance. It is therefore important to seek the right advice when structuring you will, in order to keep this in mind.
If you need help or advice with any of these proceedings, do not hesitate to contact us.
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