The research project FISCAP draws on the hypothesis that the Spanish tax system, aligned with the trends of comparative law, shows a slant of favour on the fiscal treatment of the capital and its incomes. This favourable is usually accepted as irreversible for reasons that are, mainly, of economic efficiency or pure fiscal pragmatism, though it may seem controversial from a strict optic of the constitutional principles of taxation justice.
The dualization of the Personal Income Taxes (from this point forward, IRPF), and the introduction of maintenance of legal measures that alleviate the charges of some capital incomes (ex., applicable reduction over the derived performance of the housing leasing) or that allow to differ their integration in the taxable amount (special system of the collective investment institutions), of which in great part the tax system justice depends according to the jurisprudence of the Spanish Constitutional Court (sentence 182/1997, 28 October), has been reduced, virtually, to the condition of tax over the dependent and autonomous work incomes. This way, according to the statistics analysis of the data of Personal Income Tax of the 2020 exercise (pg. 95), last published by the Ministry of Finance, an 82,9% of the taxable amount corresponding to said taxation period for work income, while the performance of economic activities, that can mostly be identified as autonomous work by-products, represented a 6,3%, taking into account that this incomes are integrated in the general taxable amount and that they support, for this reason, a greater degree of progressiveness. The rest of the taxable amount aggregated corresponded in said taxation period to real estate capital incomes (1,9%), furniture capital (3,2%), patrimonial earning and loss (3,9%) and rest of incomes (1,8%). In sum, only around the 11% of the declared incomes in the Personal Income Tax corresponded to capital rents, mostly integrated, in fact, in the savings taxable amount, that is subject to virtually proportional charges comparable to the one applied to the inferior sections of the charges scale that support the work incomes.
It could be said, however, that the tax over the capital incomes in our tax system is, par excellence, the Corporate Income Tax, which, logically, does not allow to seize progressively the economic ability of the last ownerships of the entities subject to the same, meaning, physical taxpayers of Personal Income Tax, having to be taken into account, besides the fact that, one of the main strategies of deferral of the charges of said type of incomes in this tax is the one based in the use of societal contract file as a tax planning instrument to the management service of big and even medium patrimonies not only corporate, but also purely real estate or financial. This issue has been studied with particular attention in the White Paper about the Tax Reform of 2022, in which it is affirmed that, with the aim of assuring the vertical and horizontal equity principles (pg.79), “takes special relevance the avoidance of abuse in the use of corporate form to allude the progressiveness of the tax over the rent, the taxation of riches, as well as combating the allusion and evasion of indirect taxation instrumented through corporations that are not completely affected with an economic activity”.
We are not just talking about, therefore, of the notable exemption from tax of the capital incomes in comparison to the one experimented by the work incomes, which can be appreciated in the Personal Income Tax at the mercy of its dual or semi-dual character and to other aspects of its juridical system which provide them a more benign tax-wise treatment, but also, or even before, the fact that the Corporate Income Tax, traditionally comprehended as a tax against the imposition over the income of physical people, has turned into, at the mercy of the interposition of corporations, in a comfort that allows to differ, even in an time indefinite way, the charges of capital incomes in the Personal Income Tax. In fact, we can affirm that it has turned into a way to obtain a treatment of the derived incomes of financial and real estate investments comparably more advantageous that the one economic activities incomes deserve, based main but not exclusively, in the use of capital.
From the point of view of constitutional principles of taxation justice, it cannot be ignored in the research, however, that their hermeneutics do not allow to extract with easiness specific conclusions regarding their projection about an issue of general or structural reach as is the treatment of the capital and its incomes, especially if we take into account a so relevant aspect, that it affects their tax system like does the dual character of the Personal Income Tax, since it was admitted by the Spanish Constitutional Court, in its 19/2012 sentence, 15 February, with the efficient argument that “the different incomes, based on the source they come from, as much as they can coincide with their quantity, they do not represent identical manifestations of economic capacity susceptible to be, in theory, comparable”. This conclusion goes head first, however, with the classic tax postulate according to which work incomes, as much as unfunded incomes, are the ones worthy of a special treatment against the capital ones.
It cannot cause surprise neither, therefore, that the legislator, subject the last decades, in fact, to the perennial threat of the flight of capital in a free movement context of this productive factor, has moved forward also through the reduction of Corporate Income Tax path, both through a significant reduction of the type of the general charges taxed, and selectively, through the introduction or maintenance in its rules and regulations of different special systems with the aim to protect the capital investment (dividend exemptions, entities dedicated to housing leasing, coveted corporations of real estate market investment, capital-risk entities, collective investment entities, entities holding securities), systems whose legitimation from the point of view of the use of tax with extra-tax purposes cannot be doubted as a matter of principle, but whose last beneficiaries are mostly located in the population section with more economic capacity.
In the analysis of the Corporate Income Tax as a genuine tax over the capital income it cannot be avoided, additionally, that its regulative rules and regulations also show some differences of treatment based on the dimension of the companies and other characteristics that locate some of them, the ones assigned to the named “social economy”, in an intermediate position to whic they fill work and capital as pure income production factors inside the creation and pre-distribution process of riches in the market. Therefore, its tax system is part of a great point of comparison when analysing and evaluating the master lines of treatment of capital incomes from the point of view of tax justice principles and, particularly, the re-distributive function of taxes over the income.
Lastly, the research circle will close through the analysis of the functions that they could execute in said context, inside the subsystem of taxes that fall on the capital, and without prejudice of the legal remodelling that is considered necessary, the Wealth Tax (from now on, IP) and the Tax on Inheritance and Donations (from now on, ISD), giving particular attention to the ostensibly advantageous treatment that they receive inside of this goods and rights taxes attached to economic activities, meaning, the productive capital in front the purely financial one or real estate generator of passive incomes.
In this sense, one of the main argued arguments in favor of the suppression of these personal taxes over riches and over their free ownership transmission, whose adherence to the tax justice principals is, by definition, quite bigger that the one presented by real taxes over determined goods (significantly the Property Tax Exemption), is that the generous tax benefits recognised for the individual corporate patrimony and, amongst all, to the participants in entities with economic activity, they impose the charges, mainly, over the real estate patrimony and, from a socio-economic point of view, over the named medium class. From a logical point of view, this argument is only sustained if we part from the premise that said tax benefits are, in their current regulation, completely accorded to tax justice principles and that they are not object, this way, of any remodelling with the aim of promoting a more equitable charge of the riches ownership.
It cannot be forgotten neither that the decisions between consume and savings generator of capital incomes vary throughout the life of the taxpayers (life cycle) and, in this sense, that in the demographic change to which we assist could demand rethinking the tax system. However, it is convenient to differentiate, with regard to the project object, between the different treatment that savings prevision and purely financial savings are worth of.
As for the taxation field object to the proposed research overfly, evidently, diverse derived factors of the tendencies that are appreciated from the compared and international taxation point of view compared during the last decades. It is inevitable, therefore, to introduce, even if it is in a cross-disciplinary manner, an analysis from this double perspective with the aim of revealing the possibility conditions of the capital incomes. It must be taken into account, in this sense, that it has been observed in the last years a greater sensibility of the international organisations of economic character in the battle against taxation evasion and elusion as precondition of a fairest taxation treatment of transnational capital incomes and even towards the recovery or the reinforcement of general taxes over the riches, in which it has significantly influenced the verification of the increment in inequality experimented after the economic crisis of the last decade, particularly, the one derived of the COVID-19 pandemic.
The project proposes a general research goal, ultimately, the analysis, from a juridical point of view, of the structural aspects of the capital income charges, both productive and financial, as well as their ownership and transmission. All of it with the aim of confirming or refuting the original hypothesis, of clarifying which are, in this case, the possibility conditions of the correction of the existent imbalance in the work and capital charges in the current estate of things and determining if it is to say the least maintaining, without prejudice the remodelling that demands the elimination of the dysfunctions presented in the regulation or the adoption of alternative forms of charges, the taxation over the riches of physical people and their transmission to free ownership as complementary taxation figures of the charges of income, with the aim of guaranteeing a most exquisite adaptation of the charges of capital to the equality and progressiveness taxation principles.

Project Interest

This research is proposed in the chained economic crisis context and the increase in inequality of incomes and riches that we have attended over the last years, which is promoting an increasing concern for the establishment of the minimum taxation over the corporate incomes, singularly the transnational ones, as well as a revived debate over the patrimony taxes and over the free ownership acquisitions, from which are good example of the attention paid to these taxes in the last times by some international organisms (The Role and Design of Net Wealth Taxes in the OECD -2018-, Inheritance Taxation in OECD Countries -2021-, Fiscal Monitor IMF -april 2021). At the same time, it reinforces the advisability of doing the research the provoked controversy for the practical elimination of the charges over riches in some Autonomous Communities through the exercise of their regulative powers over said assigned taxes by the State, which has motivated the creation of the Temporal Solidarity Tax over the Great Fortunes recently guaranteed by the Spanish Constitutional Court in an unpublished sentence in which they have dismissed the contravention allegations of the constitutional principles relating to economic capacity and the interdiction of non-confiscation of the tax system, opening with it a new analysis line that, until now, hadn’t provoked the application of the Wealth Tax which it complements. Lastly, it cannot be stopped from pointing out, the connection of the proposed thematic with the given prominence to the taxation over riches in the White Paper about the Tax Reform of 2022.
From the scientific point of view, the originality of the project comes from the proposition of transcending the mere positive-juridical analysis of determined taxes or particular tax systems to approach the tax treatment of capital globally and valuate it from a constitutional justice perspective with proposal ends, in the way the task is done from the tax theory of the optimum taxation, but with the used tools in the juridical method.