There is less than a month left to claim the State for the illegality of the capital gain

One year after the municipal capital gains calculation system was declared unconstitutional, there are many taxpayers who have had their way closed to claim the tax refund, due to the very limitation of effects of judgment 182/2021, of the Constitutional Court. In this situation, it is interesting to know if these taxpayers could request compensation for patrimonial responsibility, as the only way to recover what was paid.

The problem with patrimonial responsibility is that, to access it, a series of very demanding requirements must be met. The main one is the one provided for in article 32.5 of Law 39/2015. Specifically, this provision requires that "the individual has obtained, in any instance, a final judgment rejecting an appeal against the administrative action that caused the damage, provided that the infringement of European Union Law subsequently declared had been alleged."

Therefore, not only is the taxpayer required to try to repair the damage, filing an appeal and obtaining a final dismissal judgment, but, in addition, in said appeal, he had to allege the unconstitutionality of the tax, finally declared, but that in that moment it was a mere possibility.