The Constitutional Court declares unconstitutional the RD-L 3/2016: Analysis of its rationale and of its tax implications for corporate income tax purposes
By judgment of 18-1-2024, the Constitutional Court (hereinafter, TC) has declared the unconstitutionality of certain provisions of Royal Decree-Law (RD-L) 3/2016, of 2 December. This ruling is a consequence of one of the two questions of unconstitutionality raised by the Audiencia Nacional (AN) in relation to two contentious-administrative appeals that are being processed.
Provisions declared unconstitutional
The NA brought before the TC the unconstitutionality of the 15th Additional Provision of the Corporate Income Tax Act (hereinafter, LIS) and paragraph 3 of the 16th Transitional Provision of the LIS, both precepts in the wording given by article 3. First, sections One and Two of RD-L 3/2016.
Grounds of Unconstitutionality
According to the TC, there is no impediment to establishing, modifying or repealing taxes by means of a decree-law, provided that there is a situation of extraordinary urgency that justifies it, and that the duty to contribute to the support of public expenditure established in art. 31.1 EC is not affected.
Claims rejected
The appellant requested that other grounds of unconstitutionality also be analysed, and not only that of the rank of the regulation. The Constitutional Court, as it did when it declared the unconstitutionality of RD-L 2/2016, points out that, once a regulation has been annulled for contravening art. 86.1 EC, it is no longer appropriate to analyse other infringements.
Effects of the declaration of unconstitutionality
As has occurred in other rulings, it is established that IS tax obligations that on 18-1-2024: (i) have been decided with a final administrative ruling or resolution, (ii) or settlements not contested on the same date; (iii) or self-assessments whose rectification has not been requested on the same date, cannot be reviewed on the basis of this ruling.
The judgement has a dissenting opinion which, despite agreeing with the grounds and the ruling, disagrees with the limitation of the effects of the judgement.
In our opinion, it is not foreseeable that this regulation could be processed, approved and have effects for tax periods already concluded, therefore, companies whose turnover for the previous year has exceeded 20 million euros will be able to complete the corporate income tax return for the period 2023 without taking into consideration the amendments introduced by RDL 3/2016, now declared unconstitutional.
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