Unlike other companies such as energy companies, banks have not traditionally been very active in contest in court laws that harm them. But everything indicates that this is going to change with the new ‘tax’ to large and medium-sized entities announced by surprise by Pedro Sánchez last July. The industry considers unconstitutional in its current design. And waiting for the changes that the bill during the parliamentary process, the most widespread idea today in banking is appeal it in court. It could be, yes, a very long legal battle, of up to eight yearsaccording to financial sources.
As it is a bill presented by the PSOE and United We Can, the only ones who could take the law to the constitutional Courtonce approved, would be the parliamentary groups or a group of at least 50 deputies or 50 senators. The banks housed some minimal hope that him PP o Vox they could do it, but they see it very improbable because of the political cost of taking an initiative that could be unpopular in a pre-election year and with the inflationary spiral eating up the purchasing power of households.
sources of the PP address They do not clarify whether they will file an appeal before the Constitutional Court or not, reports Pilar Santos. They claim not to know the “particularities of the tax” and ask for time to know the details and make the decision. In any case, they assume that their group table amendments “to improve as much as possible” the new levy. Voxfor its part, has not answered to the questions of this newspaper about his position.
influence amendments
The banks, precisely, are working to try to get some parliamentary groups to present amendments that benefit to the industry, such as lower income level minimum that requires paying the tax (800 million euros in 2019). If you get it, a bigger number of entities would be seen affectedsomething that the largest try to achieve so as not to be seen competitively disadvantaged and that would allow the Government to obtain the estimated collection (1,500 million a year) with a minor type expected (and therefore, with a lower contribution from each entity).
In any case, what seems most likely is that the banks will have to expect to the Treasury to pass the first settlement advance of the ‘tax’ in february next year to take the matter to court. Then the entities will be able to appeal it, allege that it goes against the Magna Carta and ask the judges raise it to constitutional Court. If the judge accepts it and the Constitutional Court admits it for processing, said court “would take between six and eight years to solve“, financial sources point out.
Double taxation
The legal services of the sector come legal arguments to drop the lien. A key question is whether or not double taxation is taking place, that is, if banks are being forced to tax twice for the “same manifestation of wealth”, something that the laws prohibit in certain cases. The ‘tax’ is going to be imposed on the interest margin (income for the difference between what entities charge for loans and pay for deposits) plus the commissions. These are the first two items in banks’ income statements which, after many other elements (such as expenses or provisions to face losses), give rise to profitwhich is recorded by the Corporation tax.
To make it difficult to consider double taxation, the Government has designed the tax as a “patrimonial benefit of a public nature of a non-tax nature”, instead of as a tax. The bill presented by the PSOE and United We Can shows that the Executive is aware that the banks will use this fact before the courts. Thus, it cites seven articles of the Constitution y four sentences of the Constitutional Court to justify the use of that figure.
“The requirement of the benefit to those obliged to pay is not included in the scope of a legal-tax relationship, but in the context of the intervention of the State in the economy in order to compliance of the principles and constitutional values that govern our social contract”, justifies the text. The banks, however, consider that it is a masked tributea luck of “corporate tax bis”, and therefore an unconstitutional double taxation occurs. “It’s like putting a patrimonial benefit to wages of certain people; it would be a tax and there would be double taxation, because salaries are already taxed by personal income tax,” they argue.
Confiscatory or not
With everything, various sentences and Constitutional orders (such as the one related to the 2018 electricity generation tax) have highlighted that the only double taxation that is prohibited In any case, it is the one produced by regional taxes in relation to the local or state. In the rest of the cases, the court has explained, it will depend on whether the new lien is adapted to the “economic capacity” who should pay it and does not have “confiscatory scope” (Principles that appear in article 31.1 of the Constitution, which, according to Pedro Sánchez, supports his initiative).
The banks claim that are not comply these principles because the payment of the new tax plus the corporation tax will mean a “very high” amount about your benefits. The text of the bill also anticipates this argument: the expectation of raising 1,500 million euros a year “does not seem to imply a disproportionate amount if the past or estimated benefits for the next few years and dividends distributed to the shareholders”. The entities also allege that the constitutional principle of equalitybecause the smallest have been excluded from paying the tax.
malpractice
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Another legal argument they handle lies in the fact that the Treasury has studied how to articulate the ‘tax’ so that it can then be presented PSOE and United We Can. In this they see a misuse of the administration or even a embezzlement of public funds, because the parliamentary groups are not part of the Government. They also criticize the fact that the National Commission of Markets and Competition (CNMC) ensure that the tax is not passed on to customers, when it should be more concerned about the effect on competition that some entities have to pay it and others do not.
Although there are doubts about how to interpret the project, in principle it seems that the tax will affect Santander, BBVA, CaixaBank, Sabadell, Bankinter, Unicaja, Ibercaja, Cajamar, Kutxabank, Abanca and BNP Paribas. Only CaixaBank and the BBVA they have revealed their estimate of how much the levy will cost them: 400-450 million and 250 million a year, respectively. Extrapolating the results up to June to the total for the year, Santander would correspond more than 335 million and the Sabadell, more than 170 million (the final figure will be higher, because the rise in rates has accelerated in the second half). The four big banks, thus, would have to contribute more than 75% of the 1,500 million planned by the Executive.