Brussels, 16 February 2011
The European Commission has requested Spain to amend its tax provisions on inheritance and gift tax that impose a higher tax burden on non-residents and on assets held abroad. The provisions are incompatible with the free movement of workers and capital as provided for by the Treaty. The request takes the form of a complementary "reasoned opinion". If there is no satisfactory response within two months, the Commission may decide to refer the case to the EU's Court of Justice.
Inheritance and gift tax in Spain are regulated at both state level and at the level of autonomous communities. In practice, the autonomous communities' legislation leads to a substantially lower tax burden for the taxpayer than the state legislation does.
When the gift or inheritance does not fall within the jurisdiction of an autonomous community, only the State legislation applies. This is particularly the case where the recipient is resident abroad or when gifts of property are located abroad. As a consequence, the taxpayer has to pay more taxes than if he/she had been living in Spain or if gifts of property were located in Spain.
The Commission considers that this constitutes an obstacle to free movement of persons and capital in breach of the Treaty on the Functioning of the European Union (Articles 45 and 63 respectively).
The Commission sent a reasoned opinion to Spain on 5 May 2010 (IP/10/513). The Spanish legislation has been amended but is still not fully compliant with EU law. The Commission has therefore decided to send a complementary reasoned opinion requesting Spain to make additional changes to its legislation to ensure full compliance.
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