Friday, 24 February 2023, 10:25
We have clients who purchased a property in Malaga last year through our law firm. They were in disagreement about the reference value (valor de referencia catastral or new minimal tax value) of the Spanish Cadaster for their urban property. Therefore they decided to challenge this value for their tax application and their arguments were upheld.
This was without the need to start any administrative or judicial proceedings. We will explain what happened in this case in this article. Hopefully with this information buyers of a home in Spain in similar circumstances will therefore be able to decide whether to challenge this reference value.
One year since the new cadastral reference value
In January 2022 the new minimum tax value in property conveyance, inheritance and gifting became effective in Spain. This tax value is called the cadastral reference value and can be obtained directly from the cadastre's website. But to obtain this value, you will need the cadastral reference of the property and a Spanish NIF number. If there is no cadastral reference, there can be no reference value.
Why is the reference value important for your house purchase?
Even with the cadastral reference, some urban properties do not have a published reference value. Likewise, for most homes in undevelopable or rural lands, these reference values are not published. In these cases, when completing the deed of sale, inheritance or gift, the corresponding taxes will be paid based on the value in the deed. The administration may revise this declared value if it deems that the value in the deed is lower than the minimum tax value.
The reference value of a property makes it necessary to pay the Transfer Tax (ITP) in a purchase based on the said value when it is higher than the actual price paid by the buyer.
How high was the difference between the purchase price, mortgage valuation and reference value for our clients?
Our clients were purchasing a property in 2022, with a reference value 90% above the purchase price. For this reason, it was obvious that the value was excessive. This is an extreme case. These clients needed a mortgage and the mortgage valuation came up with an amount for the property about 25% higher than the purchase price. However, this appraisal value was still well below the cadastre reference value.
These clients deemed it unfair to pay ITP based on the reference value. We explained to them that they could pay ITP based on the appraisal value instead of the reference value. We did so by attaching the appraisal certificate to the deed of sale. The goal was to show that the mortgage appraisal value was appropriate to settle the corresponding taxes for the purchase.
What did our buyers decide?
Our clients decided to pay the ITP for their purchase based on the mortgage appraisal. In doing so, they took a risk since, by not paying the tax based on the reference value. They would be subject to penalty proceedings and the Tax Administration would then demand payment based on the reference value in addition to an overdue payment penalty. They assumed the risk and they were fortunate with the outcome.
The fact of paying the purchase price based on the mortgage appraisal value has a legal foundation in the General Tax Law. The value of properties in such appraisals is one of the legal methods allowed when verifying the value of properties. The administration itself has often used these appraisals to its benefit. In sales with a mortgage where the appraisal value was higher than the purchase value of the property, it would demand tax payments based on the appraisal.
What happened after the ITP tax for the purchase was paid?
About 9 months after paying the Tax on Asset Transfers (ITP), the buyers received a notice from the Department of the Treasury of the Regional Government of Andalusia (Junta de Andalucia). In it, they were informed that value-verification proceedings had been started and they were notified of the payment proposal from the Department of the Treasury. This proposal demanded payment of the ITP based on the reference value plus a late payment penalty.
When they consulted the situation with our tax lawyer, he submitted allegations on behalf of our clients. The Department approved the allegations and considered it adequate and legal for ITP to be paid based on the mortgage appraisal value. The Treasury Department of Andalusia set aside the penalty proceedings.
Honestly, we did not expect any positive result from these initial allegations and we thought we'd have to «fight harder» on this matter. Therefore, it was a pleasant surprise that the Department directly decided to end the proceedings.
What should we take into account in future house purchases in Spain?
If in a property purchase the reference value is significantly above the actual price to be paid for the property, we recommend obtaining a mortgage appraisal for the property. Whether you are using a mortgage to buy is irrelevant in this case. The important thing is that these valuations are one of the methods allowed by tax regulations to establish the value of properties.
What are the costs for a mortgage valuation?
The cost of a mortgage appraisal can be between 300 and 500 euros, depending on the type of property. If the appraisal value is similar to the reference value, it would be difficult to avoid paying ITP based on the reference value. As a buyer, your consolation would be that the purchase price you are paying for the property would be an attractive price, below the market value.
However, if the appraisal value is closer to the real price you will be paying, you can take certain risks and pay ITP for your purchase based on the appraisal value. You will surely receive a notice of the beginning of penalty proceedings for you to pay ITP based on the reference value. You will have to challenge it before the Department of the Treasury.
Do you have guarantees for future cases challenging the reference value of the Cadastre?
What happened with our client above does not mean that, in the future, the administration will accept the appraisal value in all cases. However, it does open the door for it to continue accepting the value of these mortgage appraisals. This in cases where the reference value is higher than these are.
Fiscal advice for your property transfer by C&D Solicitors
The important thing is for you as a buyer to be well aware of the financial consequences before you decide to «fight» with the administration over the reference value. In doing so, it is very important for you to obtain appropriate tax advice during a purchase, inheritance or gift/donation of your property in Spain.
C&D Solicitors is a law firm specializing in conveyancing, property law and inheritance, with experience since 2006. We provide advice on the purchase and sale of properties for foreign clients, whether resident or non-resident. Our colleagues speak English, Dutch, Swedish, German and French.
Author: Gustavo Calero Monereo, lawyer at C&D Solicitors (Málaga)
Te puede interesar