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The Modification of the Tax on Large Commercial Establishments
In order to overcome the objections raised by the European Commission and the national courts on the compatibility of the IGEC with Community law, the Catalan Government is pushing for a modification of this tax figure in the Law on Measures Fiscal, administrative, financial and public sector (also called, law accompanying budgets).
The draft amendment, which is currently under parliamentary debate, aims to favor the parafiscal nature of the tax , converting the environmental impact derived from the use of large commercial areas, in the only circumstance that makes up the taxable event of the tax. The environmental impact taxed is that produced by the influx to establishments by private vehicle.
In order to ensure that the IGEC is no longer charged with "state aid incompatible with Community law", the scope of the taxable person is extended , so that all commercial establishments which cause pollution Considerable, according to the results of a study commissioned by the Cerdá Institute. This means that the exemption of certain commercial establishments (presently foreseen in article 5) disappears; That collective commercial establishments become also taxable persons; And that not only commercial establishments with a sales room in excess of 2,500 m2, but also those with a sales area of more than 1,300 m2 of sales room, if they are located outside the TUC .
On the other hand, in coherence with this different definition of the taxable event, the system of calculating the taxable base is completely modified , which now consists of the number of vehicles that access the commercial establishment during a calendar year. There are two different calculation methods:
- Direct method : applicable when the car park has a vehicle counting system. In this case, the taxable amount will be determined based on the number of vehicles that actually accesses the commercial establishment, with a minimum exemption of 27,000. Finally, this figure must be multiplied by a correction coefficient that has the objective of increasing the access of vehicles, in cases in which the establishment does not have the parking endowment derived from the ratios established by Decree 378/2006.
- Estimated method : applicable when the parking of the establishment does not have a vehicle counting system or, the establishment does not have parking facilities. In these cases, the area of the establishment will be multiplied by an estimated displacement / day ratio, which is different according to which category corresponds to the commercial establishment. This result will be multiplied by the opening days and, in turn, by a correction coefficient - which increases the trips, when the establishment is located outside the TUC.
Another important development is the disappearance of the bonus system , foreseen in the current art. 11, which allowed a reduction of the tax rate of 40%, when the commercial establishment was near a certain number of means of public transport.
In relation to the tribute management system, it should also be noted that it is proposed that its management cease to be produced by the pattern system, to be carried out through the self-assessment system. A self-assessment that must be submitted and entered between February 1 and February 20, following the date of accrual of the tax. And the expected accrual day is December 31.
Although a first reading of the new regulation proposed, seems to solve some of the criticism that had received this tax figure; A deeper analysis of the regulation, shows that the tax is not really an effective measure of environmental protection since it makes a concrete regulation of the different elements of the tax that is not consistent with this purpose.
This will most likely allow the reopening of the debate on its adaptation to the requirements of Community law and even its adaptation to the constitutional legal framework, which provides that there will be new arguments to challenge again the legality of liquidations. It should be borne in mind that the incompatibility of the present configuration of the tax with the Community law can probably cause the annulment of the assessments of the IGEC to date and the return of the sums paid with this tax.
In any case, before making a final evaluation do not hesitate to contact our experts for a detailed analysis of your case.
Partner in charge of the Administrative Law department. Aside from her specialist knowledge of Administrative Law, she is also an expert on the distribution of goods and foodstuffs. She acts as adviser to numerous commercial distributors in their ongoing expansion throughout the Spanish peninsula and also counsels a number of food suppliers. Mrs.Pich has also designed the legal basis of various major public infrastructure projects undertaken by the Catalan government.
As a lawyer, Mrs. Pich tries to empathize with the client's problem - making it his own; And apply all the technical knowledge and experience to design solutions as they are useful. If they exist, if there are none, she is also very frank. "