The TS estimates that the regularization of unjustified capital gains in IRPF derived from the extemporaneous presentation of form 720 cannot be carried out without submission to the limitation period, considering the STJUE of January 27, 2022.
The sentence annuls the sanction that had been imposed for not considering the concurrence of the subjective element of the unjust act to be accredited and confirms the liquidation through which a capital gain is imputed in IRPF in the 2012 financial year.
The appeal raises the question of whether the Chamber a quo has interpreted and applied the law of the European Union in apparent contradiction with the STJUE of January 27, 2022, case C-788/19, which declares that Spain has failed to comply with the obligations concerning it by virtue of arts. 63 TFEU and 40 of the Agreement on the European Economic Area. Providing that non-compliance or imperfect or extemporaneous compliance with the reporting obligation relating to assets and rights located abroad results in the taxation of undeclared income corresponding to the value of those assets as "unjustified capital gains". These did not have the possibility, in practice, of relying on prescription; by sanctioning non-compliance or imperfect or extemporaneous compliance with the reporting obligation relating to goods and rights located abroad with a proportional fine of 150% of the tax calculated on the amounts corresponding to the value of said goods or rights. In addition, this sanction can be combined with fines of a fixed amount, the amount of which bears no proportion to the sanctions provided for similar offenses in a purely national context and the total amount of which is not limited.
The national legislator, in compliance with the ruling of the TJUE, has issued Law 5/2022, of March 9. In view of this, the Chamber considers that an IRPF settlement cannot be carried out without being subject to any limitation period, when the unjustified capital gains that are regularized correspond to income constituted in goods and assets abroad and had been stated on extemporaneous compliance with the information obligation stipulated in disp. add 18 LGT. Considering the aforementioned sentence of the TJUE, to the proven facts, the alleged prescription has occurred, since on November 24th, 2015, the start of the inspection procedure is communicated, then the interruption of the prescription occurs at that time, with the communication of the beginning of the inspection procedure...
In this case, the taxpayers have proven that they owned that property from a date prior to the statute of limitations (prior to 2011), since they justify that the property was acquired on 09-3-2008. Therefore, at the time the inspection procedure began, the Administration's right to verify the capital gain from the acquisition of the property had already expired.... The extemporaneous presentation of form 720 does not interrupt the 2008 IRPF prescription... rather, it is the beginning of the inspection procedure, which marks this eventual interruption. The inspection procedure began, as we have said, on 11-24-2015. At that time, and according to the general prescription rules, the administrative prescription of IRPF 2011 would remain alive... In the file, which has given rise to this appeal, the imputation was made to the year 2012, as the special rule, which has now been annulled, was applicable, but which provided for the imputation to the oldest tax period among those not prescribed in the one that the special regime was in force, that is, the 2012 financial year, but having been accredited that the real estate was acquired in 2008, it could not be taxed, and everything must be understood as prescribed".