Spain reported before EU Court for discrimination in Inheritance Tax

12.2011

In October 2011 the European Commission reported the Spanish State before the EU Court on the basis that the different tax charges made to resident and non-resident recipients of an inheritance in Spain is contrary to Community law. We must remember that in Spain, Spanish residents may benefit from certain tax credits and low rates which are not applied to non-residents who obtain assets and/or rights in Spain. The difference in the tax payable under the Inheritance Tax can be quite large.

In any case, we must take into account that in the event that the Spanish State is found guilty and is obliged to modify the regulations of this tax, it is unlikely that said modification will be applied retroactively. This means that the non-residents who have already paid Inheritance Tax in Spain will not be able to obtain a refund of any surplus paid at the time.

This report before the Commission is part of a review process of the application of this tax by every member state.

As is mentioned in the press release IP/11/1551 of December 2011, the Commission considers that the current design of this Tax within the EU carries two disadvantages: 1) Double taxation, which cannot always be prevented, in the absence of double taxation treaties applicable to this Tax (Spain only has three, with France, Sweden and Greece); 2) The existing discrimination between residents and non-residents. Non-residents tend to have to pay much more.

For this reason, the Commission has suggested approving a recommendation for member states in order to avoid such conflicts. But to date, these are only suggestions. For more information, please examine the European Commission document: MEMO/11/917. We also recommend the following report made for the EU-Comission: "Study on inheritance taxes in EU member States and possible mechanisms to resolve problems of double inheritance taxation in the EU", which can also be found at the webpage of the Comission.