In FOCUS LEGAL ABOGADOS we explain you the arduous task of trying to recover the capital gain of a property sale with loss and if it is of your interest we are at your disposal.

The possible recovery depends on several factors, among others on whether the claimant is or is not resident in Spain, the way in which the payment of the municipal capital gain has been made, whether it is self-assessment or not, as the undue payment of this tax could be due to an error in the payment itself, or because the settlement or self-assessment of the tax is erroneous and inappropriate, in which case you can request directly to the municipality the refund of undue income to recover the municipal capital gain and for that it will be enough to prove the suffered error.

Recover the municipal capital gain, in case of having submitted a self-assessment

If the taxpayer is not satisfied with the self-assessment presented of the municipal capital gain because it was sold at a loss, it is not possible to request directly from the Town Hall the refund of the undue income, but it is necessary to rectify the self-assessment by submitting a document in which it is justified that it was sold in losses, (attaching documentary evidence and a report from a technician), and therefore the self-assessment presented was erroneous, because the result of the same should never have resulted to pay. The deadline to request the rectification is four years, counted from the last day of deadline of the self-assessment. Once the rectification by the municipal corporation is recognized, the return proceeds and the taxpayer can then request the refund of undue income, that is, first you must request the rectification and once obtained this, the return.

Recover the municipal capital gain when the City Council notified a settlement

In this case, the taxpayer has one month to appeal such settlement and if the period is allowed to expire without recusal, the settlement becomes final and the taxpayer can only request the nullity of the liquidation based on reasons assessed in article 217 of the General Tax Law, or promote its revocation. Once the nullity is achieved, the refund of undue income can be claimed. In any case, it remains to be seen what is the response of the Courts in these cases

Recover the municipal capital gain when the seller is a non-resident and has sold at a loss

In this case the doctrine does not consider taxpayer to the seller itself, but to the retainer and taxpayer to the payment of the same, that means, to the buying party, which makes the entire procedure more complicated.

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