Español
Русский
We are seeing the attempts of the Andalucian Tax Agency to carry out complementary settlements to businessmen and professionals who are dedicated to purchase and sale of real estate, applying the reduced rate of 2% in TPO, as permitted by the tax regulations on property transfers and legal acts documents registered in this autonomous community.
These complementary settlements consist of charging 7% instead of 2% with the sole allegation that the company has not been registered in each and all of the municipalities in which its investing. That is, if a Marbella company buys to resale a property located in Malaga, then the Junta alleges that it should have been registered in both Marbella and Malaga. Let’s see that the matter is debatable and appealable.
Article 36 of the Consolidated Text of the provisions issued by the Autonomous Community of Andalucia on Assigned Taxes, approved in Legislative Decree 1/2018, of June 19, contains the requirements required for the application of the reduced tax rate of 2 %, intended for the acquisition of properties for resale by real estate professionals:
You can buy a property by paying 2% (instead of the usual 7%) of the Onerous Property Transfers (hereinafter, TPO) modality, of the tax on property transfers and documented legal acts, if the following requirements are met:
- That the company or professional carries out a business activity to which the general accounting plan of the real estate sector is applied and is registered in the heading corresponding to that activity.
- That incorporates the property into its current assets.
- That this purchase is formalized in a public deed.
- Reseale the property in less than 5 years and do it again with TPO.
This regulation has been interpreted by the Tax Agency in response to several binding queries, specifically, when the question arises as to whether the taxpayer must be registered in all the municipalities in which each property that has been acquired is located as an investment, different from the main place where it actually carries out its activity, since the Andalucian Tax Agency is trying to settle the 7% tax on those taxpayers who have not been registered with the IAE in each municipality where they are investing.
In this regard, in response to several queries, the General Director of Taxes responds by pointing out that, in addition to the requirements indicated in the aforementioned article 36, one of the important points to comply with when applying this reduced rate of tax is to be registered in the correct IAE section to be able to carry out this type of activity, which is Section 833.2 of “Buildings Promotion”.
As to whether the taxpayer must be registered in all the municipalities in which he is investing in real estate, the DGT defends that the only requirement demanded in this regard by the regulations is the registration in the municipal area in which the affected premises are located, carries out economic activity, without the need, therefore, to present a registration under the same heading in each of the municipalities in which the taxpayer decides to make a real estate investment.
This seems to indicate that compliance with the registration requirement in the IAE lies in the taxpayer appearing in the correct heading to carry out this activity and in the place where it is mainly carried out, and not so much in being registered in all the municipalities in which they decide to invest at a given time, thus considering the requirements to apply the reduced rate of 2% met if the businessman registered a premises assigned to the activity from which to carry out the same.
For all these reasons, the Tax Agency should not request the complementary settlement of up to 7% when a company carries out real estate purchases and sales without registering in each municipality in which it purchases for this purpose, since it is not a requirement to apply the reduced rate, regardless of whether in Some of these municipalities must register or not to make the investment for the purposes of the IAE.
