The Constitutional Court has ruled on the controversial regulation of the minimum instalment payment on account of Corporate Income Tax, declaring null and void Decree-Law 2/2016, of 30 September, which approved this mechanism.
The minimum instalment payment only applies to companies whose net turnover in the 12 months prior to the start of the tax period exceeded 10 million euros, and it taxes, at a fixed rate of 23%, the accounting profit obtained by the entities, even when their instalment payment tax base was lower due to tax adjustments or the offsetting of tax losses.
This meant that the taxpayer was forced to advance funds which, upon filing the final Corporate Income Tax return for the year, it was entitled to have refunded, which in practice became a form of temporary financing for the State at zero interest.
The National High Court questioned the constitutionality of the rule and referred the matter to the Constitutional Court, which has finally ruled.
The Constitutional Court did not analyse whether the instalment payment mechanism violates the principle of the taxpayer's ability to pay, but it determined that the scope of the regulation introduced "which affects the main elements of the instalment payment", affects taxpayers' duty to contribute, so it could not be approved by Royal Decree-Law, since this type of law cannot affect the rights, duties and freedoms of citizens.
In the Court's opinion, the amendment of the tax "substantially affects its quantification and does so with respect to the largest companies which, although relatively few in number, contribute more than half of the tax revenue".
