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Spain: Potential recovery of Spanish energy taxes

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Taxpayers may be able to recover several years of paid energy taxes under a long-awaited opinion from the Supreme Court on whether certain taxes are constitutional.

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José María Cobos

Background

On January 1 2013, the Energy Sustainability Law 15/2012 of December 27 2012 was enacted, which introduced several new taxes to harmonise the Spanish tax system that intended to promote more efficient environmental and sustainability practices. These objectives of the Law inspired tax reform in Spain in line with the basic principles governing tax, energy and environmental policy in the European Union.

The Law created the following taxes, among others:

  • Tax on the production value of electricity;

  • Tax on the production of spent nuclear fuel and radioactive waste resulting from the generation of nuclear energy; and

  • Tax on storage of spent nuclear fuel and radioactive waste at centralised facilities.

Despite the environmental objectives of these taxes, doubts arose over the true aim of these new tax items and whether they complied with the Spanish Constitution and Community Directives.

Constitutional questions

In this context, the Supreme Court referred two requests to the Constitutional Court on June 14 2016, asking for a ruling on unconstitutionality in relation to these taxes. The Supreme Court has claimed the tax measures are unconstitutional on the grounds that they might infringe the "ability-to-pay" principle established in Article 31 of the Spanish Constitution.

The first request for a ruling on unconstitutionality referred to the tax on the production value of electricity. The Supreme Court said that there are serious doubts about its environmental aim, given that:

  • None of the elements that compose the tax are geared towards the internalisation of the environmental costs derived from the production of electricity;

  • It is observed that this tax is levied on the same ability to pay as that on which economic activities tax is charged; and

  • As there is no clear environmental aim to justify this double taxation, this tax could breach Article 31 of the Spanish Constitution.

The second request for a ruling on unconstitutionality referred to the tax on the production of spent nuclear fuel and radioactive waste resulting from the generation of nuclear energy, and the tax on storage of spent nuclear fuel and radioactive waste at centralised facilities. The Supreme Court considered that:

  • The objectives of the taxes are already covered by the charges established in the legislation of the electricity industry;

  • None of the elements in the make-up of the tax are aimed at discouraging pollution or stimulating other conducts;

  • These taxes are simply a charge on the production and storage of radioactive waste. Therefore, their true aim is to finance the tariff deficit of nuclear power plants; and

  • In short, the court has serious doubts about the environmental nature of these taxes and their compliance with Article 31 of the Constitution, as there could be several tax items being levied on the same manifestation of wealth.

The Supreme Court has not given an opinion on the possible incompatibility of these taxes with European Union law. The analysis of that question, if necessary, is being deferred until the Constitutional Court has ruled on the strictly national questions.

In view of this situation, while the doubts about the compatibility of these taxes are being resolved, taxpayers should consider whether to contest the self-assessments of these taxes to maintain the right to recover the excess amounts paid if these taxes are rendered null and void.

José María Cobos (jose.maria.cobos@garrigues.com), Madrid

Garrigues

Website: www.garrigues.com

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