Velasco Lawyers

The purchase of a resale property requires the buyer the payment of a transfer tax.

Update: Starting from January 1st 2012 the Transfer Tax in Andalucía will increase using a progressive system.

For resale properties

For resale of properties qualified as garages

For New properties

For new properties there is no transfer tax but a VAT of 4% for now. The tax VAT decrease from 8% to 4% for new properties will be extended throughout 2012. Stamp duty will increase or decrease according to different cases.

• 1.2% (compare to 1% previously) for properties
• 0.1% for disabled people (compared to the previous 0.3%)

Before January 1st 2012

For sales completed between the 19th of March 2010 and the 31st of December 2011 the transfer tax was valued at: 7% for properties up to 400,000€ and 8% for the balance above 400,000€. Purchase of a new property was subjected to VAT 8% and stamp duty 1%.

The valuation by the Junta de Andalucia

Following the payment of the transfer tax and the inscription of the property at the land registry, the tax office belonging to the “Junta de Andalucía” will proceed for an evaluation of the value of the property.

When the value established by the Administration is higher than the one declared on the purchase, the tax authority intervene and notifies the buyer of the extra amounts to pay as if the sale happened for the estimated value by the junta de Andalucía.

In this case the buyer has two choices: either pay the extra amount or appeal, as errors are always possible especially considering the present property market conditions. Get professional advice from a lawyer.

Valuation of the property by the Junta de Andalucía

The “algorithm” used by the tax authority to estimate the value of the property is straightforward.
For the following property types:

• Residential (and annexes to a residential property)
• Commercial (except market areas and supermarkets)
• Offices
• Industrial buildings (except manufacturing sites and transport services)
• Property used as storage

The value is calculated by taking the cadastral value of the property and by multiplying it by a coefficient. This coefficient is dependent on the municipality where the property is inscribed and the date of the purchase. The Junta de Andalucía publishes every year a revised table with the different municipalities and the coefficients for the calculation. The coefficients are calculated by taking into account the local average market fluctuations and the actualization coefficients of the cadastral value. The result is a value that tries to reflect as much as possible the local market realities.

For other types of properties like plots the same calculation will be done, but the request for payment of extra amount will be sent on a case-by-case basis.

What do if the tax authority is claiming for an extra amount?

The first step is to have an official property appraisal that will estimate the present market value.

The second step is to appeal to the claim. There are two different procedures, both incompatible with each other:

1. Appealing to the junta de Andalucía
2. Appealing to the courts (to the “tribunal economico administrativo Regional de Andalucía” or the “tribunal economico administrativo central”

The procedure chosen must be completed before another one is pursued.

It is important to note that the appeal only won’t stop the procedure. The procedure will be suspended only if the buyer offers a payment guarantee along the appeal. This guarantee can be for example money in a bank account or any other financial instrument that will enable the administration to access the money if the appeal fails.

Appeal to the Junta de Andalucía (Recurso de reposición)

The appeal can be done within one month from the notification date. The following information will have to sent:

• Full identification of the person and the property.
• Full identification of the procedure related to the claim received
• Confirmation that an appeal to a tribunal has not been done at the same time
• Reasons why the property valuation done by the administration is wrong

If no answer from the administration is received within a month from submitting the appeal, the appeal can be considered rejected.

Appealing to the “tribunal economico administrativo”

On top of the documentation described above it will be important to include objective evidence determining the value of the property.

Tasación Pericial Contradictoria

If the administration estimate the property appraisal from the appraiser designated by the buyer is done incorrectly, it is possible that the administration will send its own appraiser. If the difference between the two valuations is equal or less than 120.000€ or equal or less than 10% of the first valuation, the valuation from the appraiser designated by the buyer will be chosen.

If instead the difference is greater then there will be the need of a third appraisal.

In any case the buyer will pay the fees of any appraiser that he will designate.

Payment of the extra amount

If the buyer has difficulties in paying the extra amount claimed by the tax office, it is possible to ask for a fractioned payment. The request will have to be done through an official procedure.