Changing its previous criterion, the Supreme Court has established as a doctrine that “late payment interest paid by the Tax Agency when making a refund of undue income is subject to and not exempt from personal income tax”.
This new interpretation represents a change in the criteria established in the Ruling of 3 December 2020, in which it was understood that late payment interest, which a taxpayer receives when the Tax Administration refunds undue income, was not subject to Personal Income Tax.
Changing its previous criterion, which considered that late payment interest paid by the Tax Agency when making a refund of undue income is not subject to Personal Income Tax, the Court in its ruling of 12 January 2023 establishes as a doctrine that “late payment interest paid by the Tax Agency when making a refund of undue income is subject to and not exempt from Personal Income Tax, constituting a capital gain that constitutes general income”.
We would like to inform you that the Supreme Court has just published its ruling, no. 24/2023, dated 12 January 2023, in which the High Court establishes a new doctrine by considering that the late payment interest paid by the AEAT, when making a refund of undue income, is subject to and not exempt from Personal Income Tax, constituting a capital gain that is taxed as general income. Such interest produces an alteration in the value of the recipient’s assets and the tax rules do not exempt them from taxation.
This new interpretation represents a change in the criteria established in the Ruling of 3 December 2020, in which it was understood that late payment interest, which a taxpayer receives when the Tax Administration refunds undue income, was not subject to Personal Income Tax.
Late payment interest is the compensation that the Tax Agency ends up paying to a taxpayer when, for example, it makes an excessive tax assessment that the courts end up annulling to compensate the taxpayer for the time during which he has been deprived of that money. The General Tax Law fixes it as the legal interest of money plus 25% or whatever the Budget dictates. For 2023 it has just been raised from 3.75% to 4.0625% for each year of delay in repayment.
Traditionally, the Treasury had considered that the taxpayer had to pay personal income tax on the interest paid to it, including it as capital gains in the savings tax base. The practice, however, began to be challenged in the courts, in a legal battle that ended in the Supreme Court. In December 2020, its magistrates ruled that “late payment interest paid by the Tax Agency when making a refund of undue income is not subject to personal income tax”. “When the taxpayer is refunded interest that he or she has unduly paid, compensating them, there is no capital gain, but rather a rebalancing, cancelling the loss previously suffered,” the ruling explained. It is not that late payment interest is exempt from personal income tax, it is that it is directly outside the scope of the tax.
But that criterion has just been overturned. A new majority of the Second Section of the Administrative Chamber of the Supreme Court, led by the only one of the eight judges who opposed the 2020 ruling, has just ruled in favor of the Treasury, demanding that the late payment interest it pays be taxed. The ruling of two years ago, the rapporteur argues, “was not adopted unanimously. A re-examination of the problem that has been occupying us leads this court to expressly change its criteria”.
Two of the five judges voted against the ruling, arguing against the change. The new criterion, they argue, “may encourage the Administrations to act irresponsibly and contrary to the law, in the knowledge that part of the interest for late payment that the law obliges them to return to the legitimate owner will be taxed”. Paradoxically, they denounce, the ruling means that “the same Administration that committed the illicit act later profits from it”.
The Supreme Court’s radical change of criterion regarding the taxation of compensation paid by the Treasury, now advocating taxing them after leaving them tax-free in December 2020, is not only a step backwards from the customs and practices of two years ago, but also a turn of the screw that will make their taxation tougher. What’s more, it means that the Tax Agency could end up reimbursing up to 54% of the compensation paid.
We remind you that the Directorate General of Taxes, in consultation V1195-2022, accepted the criterion of the Supreme Court of 3 December 2020, establishing as a doctrine that said late payment interest does not have to be included in the Personal Income Tax return.
For further information, please consult Tax Consultancy
