The Regional Economic Administrative Tribunal (TEAR) of Madrid has issued a “new and surprising” resolution, to which EL MUNDO has had access, in which for the first time it agrees to consider a family of two parents with two children as a large family in which the woman was pregnant with the third child, although this one had not yet been born.
Specifically, this Court has ruled in favor of the family, which claimed to be considered large for the purpose of paying the Tax on Property Transfers and Documented Legal Acts (ITP-AJD). The claimants bought a home for habitual residence in June 2020 and had to pay 16,350 euros for this tax, by applying the general tax rate of 6% instead of the 4% that corresponds to large families. At that time, the mother was pregnant with her third child, who was born in September of that year, with which she claimed a posteriori, considering that the reduced rate of 4% should have been applied and they requested a refund of the difference, of 5,450 euros. , with the corresponding default interest.
The Registry of the Community of Madrid understood, in response to the family’s claim, that “personality is acquired at the time of live birth”, with which it considered that the requirements were not met to consider them a large family and denied the request.
The family then filed an administrative claim before the TEAR of Madrid, alleging that according to article 29 of the Civil Code “the conceived person is considered born for all the effects that are favorable to him.” This body concluded that not considering them a large family would go “against the right to protection of families.” “What the rule intends is to facilitate access to a home that is better suited to the circumstances of large families, and the birth consolidates the provisional application of the tax benefit at a time when it had been conceived, even if it had not yet been born, the member that determines the origin of the specification ‘numerous’ as a definer of the family”, they conclude.
Fernando Herrera, a senior associate at Benow Partners, who has defended the case, explains to this medium that “this is the second resolution of a TEAR, after one issued by Valencia, in which it is determined that the third child conceived is not born, the nasciturus, serves to grant the status of a large family. This interpretation opens the way to the initiation of new procedures aimed at recovering the amounts improperly paid during the last four years, “he warns.
In the opinion of Luis Pérez, managing partner of this firm, “the resolution could serve as a basis to promote its application in other cases where the condition of a large family implies access to some type of tax benefit, in such a way that they can be application during the gestation period of the third child”.
Luis del Amo, technical secretary of the Registry of Fiscal Advisory Economists (REAF), admits to EL MUNDO that the resolution is “new and surprising”, since this criterion “has never applied to this tax or any other”. “The criteria could be transferred, mutatis mutating [changing whatever was necessary], to other taxes such as personal income tax. If, for example, as of December 31, a family has two children and the mother is pregnant with the third, she could apply in Income Tax a deduction for a large family, and the Tax Agency could understand that it is and that applying the deduction would benefit that child when it is born because the family has more available income”.
As of today, if that family applies that deduction, he points out, the Tax Agency would make a request and could present the birth certificate of the third child and the aforementioned resolutions to prove that they are entitled to that reduction.
In the opinion of the REAF expert, “it is presumable that the Central Economic Administrative Court (TEAC) establishes doctrine and that if any claim in this regard reaches the courts, that the Supreme Court will have to rule if there are sentences from Superior Courts of Justice contradictory regional decisions. But, in the end, it is unpredictable what the Supreme Court could fail”.
Javier Vinuesa, partner of the Tax area of ??Gómez-Acebo
This lawyer also points out that if this change in criteria is extended, it would not only have an impact at the fiscal level, but would prevail when requesting all the aid or benefits granted to these families and regulated in the Law for the Protection of Large Families, such as priority access to some services (such as school places), education grants (for textbooks, nurseries, universities…), discounts on some services (transport passes, boat or plane tickets, museums …), some benefits (social bonus, thermal bonus, water) or some fees (DNI and passport), among others.
The Tax Agency does not want to rule on a tax that it does not collect, as is the case of the ITP-AJD, of regional scope. Legal sources point out that for this body to change its criteria in this regard, it would first be necessary for the Central Economic Administrative Court (TEAC) to officially adopt it -something that could happen if the resolution is appealed by the Community of Madrid or if there are pronouncements contradictory from other TEARs- and, in that case, it would be necessary to see if he does it only in reference to that tribute or leaves it open to more interpretations. In any case, taxpayers could claim the same treatment as that received by the family subject to the resolution, which would force the Agency to assess whether or not to change the interpretation used to date.
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