In line with the proceedings followed by the generality of Catalonia undergoing taxation for the Tax on Patrimonial Transmissions and Legal Acts Documents (ITP and AJD) The Supreme Court has had the opportunity to pronounce on the subjection to the Tax of the Terraces for Restoration.
The Autonomous Community argued that administrative authorizations for the installation and exploitation of terraces constitutes an assumption of special use of the public domain susceptible to being subject to imposition.
The terraces are authorized through a municipal license that allows the exercise of restoration activities on public roads that, indubitably attribute to their holder a special use of the public domain. The issue that has resolved the Supreme Court in several recent sentences is whether these licenses are comparable to administrative concessions.
In line with this issue, the Supreme Court develops a very interesting delimitation of what constitutes the true taxable fact of the tax by calling attention to recent situations of extension of taxes taxable to situations and cases not included in their own contours in a search by the administrations of new taxable events, forcing interpretations ‘rooted’ in the tax law really remembered because they seriously affect legal certainty. Arguments that may well be applied to many other situations and regularization campaigns.
Regarding the legal background, the Supreme Court concludes that, to be faced with an taxable fact of the ITP and AJD we must meet before a true administrative concession or before an administrative authorization that causes a true patrimonial displacement in favor of the beneficiary, since, in another case, not only the concessions but all the authorizations for the special common use or special use would be subject to the tax.
The patrimonial displacement that protects the submission to tax by the ITP and AJD must save a direct and exclusive relationship with the Special Use Faculty that is granted in the sense that said special use entails a true patrimonial displacement, which must be assumed in the case of the development of an economic exploitation that what is moving is that activity that can be developed by the administration.
The generality argued that the authorization to install the terrace generated an obvious economic profitability in the beneficiaries. However, the Supreme Court concludes that this is not so, because it is not the use of public domain itself that generates profitability since it is determined by the march of the hospitality business.
The partial and temporary use of public roads through terraces for restoration activity does not constitute its own and inherent provision activity to the public administration.
In fact, the users of the hospitality terraces, what they pay are the consumptions made and not the permanence in public roads because other conditions can occupy it without fertilizer of any remuneration.
The public road is characterized by the transit susceptibility leaving the restriction of this compensated possibility with the corresponding municipal rate accrued when issuing the license. This rate does not constitute a consideration due to the patrimonial displacement, it is not a compensation of the individual to the administration associated with the right transmitted.
On the other hand, and as an additional argument, the Supreme Court underlines that the public domain grant confers rights to the concessionaire that determine the exclusion of third parties in the exclusive or private use of that public domain.
However, authorization does not transfer such rights or implies its patrimonial displacement. And, to the elderly, such licenses are neither subject to registration, nor is the forced expropriation to deprive of it, nor the revocation is excluded.
In short, the authorized one is subject to an administrative regime of ordinary authorization without any patrimonial displacement and, therefore, in these situations this type of situations to the ITP and AJD cannot be held.
They are equally out of the possibility of being subject to the ITP and AJD situations such as the following:
– The actions of mere administrative control of the activity of individuals in a certain sector subject to supervision or intervention. If the sector were a public service, such acts can be subject to imposition, but it is never a merely supervised sector.
– Situations in which there is no transfer of administrative faculties for the management of a public service.
– The administrative actions carried out outside the scope of the management of publicly owned services and in which it acts as one more operator in the legal traffic, such as the lease of industry.
On the contrary, situations in which the Public Administration and the individual have unduly used a certain qualification instead of the appropriate administrative concession, so the true nature of the assigned.
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