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Transfer tax and stamp duty: Current situation and future proposals

It would be incorrect to state that Fundación Impuestos y Competitividad has not paid attention to this tax, because it has undoubtedly dealt with this tax when carrying out the study on property tax, for example, or when drawing up VAT improvement proposals – tax with which transfer tax and stamp duty (as a transfer for consideration, mainly) raises more than a few problems of delimitation and coexistence–. Nevertheless, it is true that no prior project carried out explicitly had as the main subject of its research, the current situation of this State tax, devolved to the autonomous communities as concerns collection and with its own regulatory capacity framework.

The collection relevance of the tax is not very significant within the group of tax levies in our tax system, but the importance for the Autonomous Communities is not insignificant. Leaving aside its significance from the viewpoint of collection, its structural and technical complexity is indisputable, with the integration of three different legal concepts: transfers for consideration, corporate operations and transactions evidenced by legal documentation, and along with its undisputed impact on private individuals, its impact on property and financial business sectors, amongst others, is significant; hence its impact on our economic and business system is highly relevant.

In the light of the foregoing and at the present moment when a review of tax systems at international level is being advocated, the review of the most relevant taxes in the Spanish tax system and other newly created taxes cannot make us forget the need to analyse and update transfer tax and stamp duty with the aim of modernising and adapting it to social and economic reality, without losing its most essential elements.

Promoted with that aim, the result of the study carried out in recent months is reflected in the book published by the Foundation in November 2021, consisting of general preliminary considerations, and five parts, with a total of 17 chapters.

The first three parts respectively focus on issues relating to each of the three tax forms that the tax covers; a fourth part focuses on issues common to them and a special, final fifth part refers to the impact of the tax on property-related and financial transactions.

Although the project is not intended to be an analysis of the regulation of this tax, its broad scope is evident, with special attention given to the most complex issues which produce greater litigiousness. Hence the improvement proposals, de lege ferenda or by way of amendment of the administrative interpretation followed in the application thereof, should have a considerable practical impact, in the event of being taken into consideration.

The final chapter of the work is devoted to an orderly presentation of said proposals and an overall evaluation.

Authorship of these proposals and the arguments in their favour is clear with respect to the work considered as a whole, – under the coordination of GARRIGUES- as well as in each of its chapters. Even so, it is interesting to note how representatives of various Autonomous Communities, as well as employers in the finance sector (AEB, CECA) and property sector (SEOPAN) have participated in the development process of the project; demonstrating the intention to take a pragmatic approach to the tax, attentive to the different views, from the perspective of the different social partners involved therein; without, of course, the participation of those partners entailing per se their backing for the solutions contained in the book.

Special thanks go to the AEB Foundation and CECA for their contribution to the financing of the project by signing both Collaboration agreements with Fundación Impuestos y Competitividad.