More information about the Legal Basis of the Tax Reclaim
European Community (EC) citizens paid, until December 31st, 2006, 35% tax on the Capital Gains derived from the sale of their Spanish real estate. Spanish residents paid, in similar circumstances, Capital Gains Tax at 15%. The application can be filed for taxes paid in the last four years.
EC Law does not allow any State to discriminate against other EC citizens.
The European Commission has said that the 20% overpayment contravenes European Community Treaty discrimination rules.
It considers that the “difference in the tax treatment of the two categories of taxpayers, in so far as it results in a higher tax burden on non-resident individuals in situations objectively similar to those of residents, constitutes indirect discrimination on the grounds of nationality prohibited by the Treaty
EC citizens are entitled to apply for the refund of the surplus tax paid.
All claiments will, by law, receive interest of 6 % annually on the total amount, from the original payment date until the moment you receive your money from the Spanish authorities.
Direct effect of the following laws:
- Articles 12, 18, 39, 43 and 56 of the EC Treaty as worded in the Maastrich Agreement of February 7 ,1992
- Directive 88 / 361 / CEE on the freedom of movement of capital.
The direct effect of all the above have been expressly acknowledged by the European Court of Justice.
Case Law of the European Court of Justice in the Gerritse and Aschler cases.
Infringement procedure of the European Commission against Spain for the tax treatment of CGT for non-residents: Spain changed its legislation as of January 1st, 2007.
