Apuntes tema 2 - en ingles PDF

Preview

Summary

en ingles...

Description

TAX LAW | Sara Goldar

LESSON 2. CONSTITUTIONAL PRINCIPLES. INTRODUCCION The principles guide the actions of the public authorities. Art 31 CE plus art 3.1 GTL. Article 31 Spanish Constitution, all the person shall to pay the public expensive to accord of the economic capacity of each person. A tax system inspired in the principles of equality and progressive, never it will have reach confiscatory. The public expensive will do equitable assignment of the public resources and his planning and execution shall comply with criteria of efficiency and economy. Only be imposed personal or property contributions for public purposes in accordance with the law. Article 3.1 GTL, the tax system based in the economic capacity of the person and the principles of justice, generality, equality(igualdad), progressive and equitable (equidad) in the tax distribution and no confiscatory. Violation 



Constitutional Court; supreme interpreter of the Constitution. Declares the unconstitutionality of any law or regulations having the force of law (constitutional challenge/ question of unconstitutionality), judges and the legislative bodies shall consider its judgements. Ordinary courts, rules subordinate to the law.

Material principles -

Generality. Equality. Progressive taxation. Non-confiscatory taxation. Economic capacity/ ability to pay. Efficiency and economy (programming and implementation of programme budgeting).

Formal principles -

Legal reservation. Hierarchy of rule. (jerarquía de gobierno). Legal certainty.

GENERALITY All the person will contribute to support the public expensive (art. 31CE and 3.1 GTL). It has to do with the manifestation of economic capacity which generates obligations to contribute to the tax system. Tax privileges are prohibited. Generality and equality: exceptions/tax reliefs (deduciones fiscales) not targeted at providing aid for certain event or cause (discriminatory), vulnerate principle of equality. Infringement: if identical or similar situations do not receive the same legal treatment. EQUALITY

2

TAX LAW | Sara Goldar Infringement of equality in terms of taxation  not possible to submit an application of amparo (writ of amparo). Discrimination based on subjective elements on subjective elements, equality before the law (igualdad ante la ley) and equality in the application of the law; differences based on subjective reason have right application for amparo. Discrimination based on objective elements; linked to the economic capacity and the principle of progressivity. Economic capacity is a criterion that must be taken into account in order to ensure equality of treatment between equals (es un criterio que tener en cuenta el trato entre iguales). ECONOMIC CAPACITY/ABILITY TO PAY Everyone is under obligation to pay taxes according to her/his financial resources, in order to meet public expenditure. Guarantee for taxpayers plus limit the legislator. Direct and indirect indicators. Constitutional Court -

-

Real and certain capacity (capacidad real, individual y cierta), sometime, real or potential wealth (real o potencial riqueza). Infregement if it is non-existent income (inexistento o ficticia). It is way to measure taxation (fiscalidaded de medidas): o Subsistence minimum. (exempt). o What is taxed is the disposable income (renta disponible) necessary expenses are tax deductible. o Different levels of intensity: personal income tax, fees.

PROGRESSIVITY Article 31 CE plus article 3.1 GTL. As wealth increases, taxation increases too. Affects to the whole (totalidad) tax system. VAT (IVA) no-progressive constitutional court interpretation. Linked to the economic capacity principle plus compatibility with equality. Instrumental tactic to the services of the distribution. Prohibited the existence of figures that been regressive. NON-CONFISCATORY TAXATION Art.31 CE plus article 3.1 GTL. Counterbalance of progressivity. Constitutional court say that the taxation can not deprive taxpayers from their wealth, but this court did not fix a limit. Linked with the economic capacity principle plus fair taxation. Prohibition about (particular) taxes and the tax system as a whole. Reference linked with the system to the private property which is include in the CE. The taxes no may renounce to the distribution function but can not eliminate the base of its existence eliminated the wealth. The prohibition of confiscatory must only one mission of remember that the economic capacity how financial source have limits.

2

TAX LAW | Sara Goldar CONSTITUCIONAL PRINCIPLES OF BUDGETARY GOVERNANCE -

Principle of legality of budgetary operations Principle of annuity. (anualidad) Principle of budgetary unity. (unidad) Principle of stability. Principle of budgetary unit. (unidad de caja) Principle of budgetary universality. Principle of budgetary specification (especialidad presupuestaria) Principle of equitable allocation of public resources (equidad en la asignación de recursos públicos). Principle of efficiency and economy.

FORMAL PRINCIPLE: NO TAXATION WITHOUT REPRESENTATION (reserva de ley) Taxes, fees, duties, special contribution and other financial obligations shall be imposed, amended or revoked by law. Scope of application: budget, taxes, wealth, public debt. Extent: “todas las prestaciones patrimoniales de carácter público”. Not only taxes, fees or special contribution. Relative reserve, essential elements of taxes: -

-

Delimitated to the taxable event, the devengo, the tax and liquidation base (base imponible y liquidable), type of tax and other elements that help to determinate the amount to pay (tax due). The cases that place to birth the tax obligation and the maximum amount. Include the deduction and modification in the tax due.

TAX PAYERS BASE OF THE LAW

TAX BASE TAX RATE TAX DUE

Relative to the reserve about LOCAL LEVEL, flexibility because not possible to impose new taxes but the can modulate the existing taxes within certain present limit.

2...