Documented legal acts: An end to the contradiction between the Catalan tax administration and the national courts.

On 15 March 2024, the Direcció General de Tributs i Joc de la Generalitat de Catalunya published resolution number 2/24 in relation to the indirect taxation of the division of horizontal property, prior to the adjudication. The resolution confirms the criterion that in those cases in which the same public deed documents the act of division under the horizontal property regime of a property, as well as the total dissolution of the community by adjudication of the resulting entities, only the act of dissolution, i.e. the adjudication, will be subject to stamp duty tax.

The same criteria shall apply to public deeds documenting operations of segregation, division, grouping or aggregation of a property, which constitute a necessary antecedent to the operation of total dissolution of the community, formalised in the same public deed.

Although the Supreme Court ruling of 12 November 1998 already included this criterion, the Direcció General de Tributs i Joc, based on the criterion of obligatory application of the consultations of the Directorate General for Taxation, considered that when a property was divided under the horizontal property regime, followed by the total dissolution of the community, there were two conventions subject to the fixed fee for documented legal acts, one for the horizontal division and the other for the dissolution of the community.

The situation was therefore untenable. If, on the one hand, the courts followed the interpretation of the Supreme Court, the directorates general, on the other hand, maintained the opposite position.

Faced with this question, the Generalitat lodged an appeal in cassation (number 3891/2021) against the ruling of the High Court of Justice of Catalonia of 25 January 2021 in which the court, ruling on the appeal, reiterated the criterion established by the High Court in the 1998 ruling.

In view of the above, the Direcció General de Tributs i Joc has rectified its interpretation to date, thus putting an end to the existing contradiction.

A way is now open to request a refund of undue income in non-prescribed cases, in which the dissolution of a community has been formalised, after the division of the horizontal property, and tax has been paid on both agreements.