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Reconstructing Constitutional Reasoning on Tax Matters

The Spanish Tribunal Constitucional

  • Chapter
Justifying Taxes

Part of the book series: Law and Philosophy Library ((LAPS,volume 51))

  • 188 Accesses

Abstract

This chapter constitutes a further wagon in the argumentative train of this book. Up to now, the reader has been offered (1) a description of the peculiar structure of the obligation to pay taxes in contemporary Western tax systems, (2) a normative case for assigning three basic tasks to the tax system (the collection of the revenue necessary for the provision of public goods, financing redistribution and being a tool for macroeconomic management), (3) the abstract structure of the case for the general obligation to pay taxes, on the basis of what was learnt from the structure of the case for the general obligation to obey the law. It is now the time to turn to a more empirical kind of research, and more specifically, to a reconstruction of the jurisprudence of the Spanish Constitutional Court on tax matters. Now we turn to the analysis of the sixty plus cases dealing with tax matters decided by the referred court in its almost twenty years of activity1. This will allow us to render specific the argument, by coming in touch with the peculiar problems which arise in the three dimensions of legitimacy of a tax system (i.e. political participation, substantive correctness and guaranteed implementation). At the same time, the analysis is conducted with the help of some of the conceptual and normative tools developed in the previous sections (for example, the cases are classified by reference to the three different pillars of legitimacy, and in the case of substantive correctness, taking into account the relational and absolute dimensions of such pillar).

“The Court, as a constitutional organ of the State, solves political problems through legal argument: its main tool is legal reason, not the reason of (or of the) State, or of the Government, or of this or that party”

Francisco Tomás y Valiente, A Orillas del Estado

“The authority of our judgments, that can render void Parliamentary statutes and even any other decision undertaken by constitutional powers, rests exclusively on its argumentative foundation. To put it more explicitly, it derives from our ability to integrate and update in our reasoning the explicit or implicit meaning of the living body that is the Constitution”

Álvaro Rodríguez Bereijo, La Constitución y el Tribunal Constitucional

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References

  1. It deals with all cases on tax matters from the establishment of the Court after the enactment of the 1978 Constitution (actually, the first judgment on tax matters was delivered on February 2nd, 1981) to December 31st, 1997

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  2. See, among others, Fontana Lázaro (1971), Nadal (1995), Comín (1997), Prados de la Escosura and Zamagni (1992) and Tortella (1994).

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  3. Fuentes Quintana (1990). Fuentes Quintana refers to the fact that some tax systems relied on taxes which did not take into account the personal circumstances of the taxpayer when calculating tax liability. Naming such systems as “Latin” might be as controversial as the term itself. For such a reason, I prefer the more neutral reference to ad rem tax systems. See Simons (1938, Introduction).

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  4. Fontana Lázaro (1977)

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  5. Among the many analysis of the XIXth century Spanish tax system, see Pérez Picazo (1998).

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  6. “Ah, the income tax! It’s the dream of my whole life, the object of my innumerable researches, and the outcome of my long experience. They refuse to understand it, and that’s why our country is… closer to ruin and poorer every day. It’s painful to watch all the sources of wealth dray up. I still believe in it. A single tax based on the good faith, competitive spirit and pride of the tax-payer, is the best remedy for the poverty of the state. In addition, the proceeds from customs, which will be considerably raised in order to protect national industries. And finally, the unification of the national debt, which will be limited to one form of issue and one rate of interest” (Miau, Methuen, London, 1963, p. 37).

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  7. An exhaustive account of the problems of public finance in the Second Republic is provided by Díaz Álvarez (1987).

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  8. See Albiñana García (1996).

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  9. Law 50/77, of November 14th, 1977. Cf. Albi (1996)

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  10. Fernández Ordóñez (1977, 11, 13): “This reform is not to be interpreted as a piece on a political or wage deal. This reform is of a different nature, it is grounded and mutually supported by economic efficiency and public morality. Spain needs this reform, not as a side payment, but to become a modern country (…) As a consequence, we are aiming at a structural transformation of the tax system, which in its present state is insufficient, inefficient and unjust, as I have said on many occassions”.

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  11. Sections 35 to 40 of the Act.

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  12. Sections 41 to 45 of the Act.

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  13. Sections 30 to 34 of the Act.

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  14. Sections 1 to 12 of the Act.

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  15. Sections 13 to 20 of the Act.

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  16. Sections 21 to 29 of the Act.

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  17. Article 1, par. 1 says that: “Spain constitutes itself into a social and democratic state of law which advocates liberty, justice, equality, and political pluralism as the superior values of its legal order”.

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  18. The materialisation of law can be also observed in other articles dealing with the basic socio-economic principles of the 1978 Constitution. Thus, article 40, especially in its first section (“The public authorities shall promote favourable conditions for social and economic progress and for a more equitable distribution of regional and personal income within the framework of a policy of economic stability. Special emphasis will be placed on the realisation of a policy aimed at full employment”), article 128, par. 2 (“Public initiative in economic activity is recognised. By law, essential resources or services, particularly in the case of monopoly, can be reserved for the public sector and it may also declare the intervention in companies when the general interest so requires”), article 130, par. 1 (“The public authorities shall attend to the modernisation and development of all economic sectors, particularly of agriculture, livestock raising, fishing, and handicrafts, in order to equalise the standard of living of all Spaniards”) and article 131, par. 1 (“The State, by means of law, may plan the general economic activity to attend to collective needs, balance and harmonise regional and sectorial development, and stimulate the growth of income and wealth and their more equitable distribution).

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  19. Lozano Serrano (1990, 35).

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  20. STC 80/82, par. 1: “The Spanish Constitution is our supreme legal norm and not a mere programmatic declaration or collection of principles. This is stated in a clear and unequivocal form in article 9, section 1 of the Constitution itself.

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  21. STC 182/97, par. 6: “de un auténtico mandato jurídico, fuente de derechos y obligaciones, y del que se deriva un deber constitucional para los ciudadanos de contribuir, a través de los impuestos, al sostenimiento o financiación de los gastos públicos”.

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  22. See García Pelayo (1977).

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  23. STC 27/81, paragraph 4.

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  24. ATC 230/84, par. 1.

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  25. STC 37/81, par. 13.

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  26. STC 42/82, par. 2: “This customary conception of the Rechtsstaat does not exhaust the meaning of the clause of the Social Rechsstaat of our Constitution”. The Court moves from this premise to justify an expansive definition of the right of access to court: “it is clear that the set of norms dealing with legal aid should be constructed and completed in conformity with [the clause of the social Rechtsstaat”.

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  27. Of course, there are indirect arguments in all judgments that affect either the réserve du loi or the division of labour between ordinary tax statutes and the Budget Act.

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  28. STC 19/87, par. 4. The Court states that the principle of legality requires that common action norms in different spheres of activity be decided exclusively by the people’s representatives. This does not rule out that statutes might refer some details to statutory instruments. However, that should not imply a blank or undetermined delegation. Similar reasoning at STC 185/95, par. 3; STC 182/97, par. 7.

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  29. STC 185/95, par. 3.

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  30. STC 19/87, par. 4. The reserve du loi is grounded on other constitutional principles. Among them, the Court refers to the “unity of the legal order” and “the basic equality of all taxpayers”. According to this judgment, article 133, paragraph 2 of the Constitution cannot be constructed in such a way as to authorise local authorities to decide on their own matters that are reserved to statutes.

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  31. I am not claiming that it is wrong to limit the power to fix tax rates by local councils. Without getting into too much detail, it seems to me that this case might have reached the right conclusion with a far from perfect argument. In general terms, it could be argued that the legitimacy of the decisions taken by local councils is subject to the condition that their agreements do not impinge upon the autonomy of others not having a right to political participation within them. In what concerns the merits of the case, the dissenting opinion of Díaz Eimil, who argued that the statute at hand framed quite extensively the power to tax of the local councils, and almost only left them free to set the rates, might be seen as more balanced and at any rate more in accordance with the evolution of the territorial organisation of the Spain of the late 90s.

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  32. This argument was anticipated in STC 37/94, par.1 and it was applied once again in STC 182/97, par. 15 and 16.

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  33. STC 6/83, par. 6</u>.

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  34. <u>STC 37/81, par. 4</u>. <u>STC 6/83. par. 6</u>.

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  35. The boldest statement at <u>STC 185/95, par. 6</u>: “It is to be required that the statute contains a minimum of material regulation, so that it can provide the basic guidelines of the statutory instrument, as a sort of program or framework”.

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  36. <u>Dissenting opinion by Justices Gabaldón López, Díaz Eimil and de Mendizábal y Allende, par. 3</u>

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  37. <u>STC 182/97, par. 7 and 8</u>

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  38. <u>STC 179/85, par.3</u>: “This Court finds that the blank delegation to city council decisions contemplated in the statute under review is contrary to the principle of legality in tax matters. This is particularly so in what regards the fixation of the rate at which the tax is to be collected: “There is no doubt that the tax base and rate are among the essential elements of the surtax in question [which was to be added to the tax liability deriving from the Personal Income Tax]. This is so to the extent that they determine the additional tax liability of each taxpayer. The statute fixes the surtax base, but not the rate. It only states that the rate should be a “single” one. City Councils [Ayutamientos] are expected to determine the rate on their own, with complete and absolute discretion, not being subject to any legal limit; the statute does not establishes any guiding criterion, not even minimum and maximum rates. However, it is the case that City Councils are not granted legislative power by the Constitution, as it does to Autonomous Regions [Comunidades Autónomas]”..

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  39. Escribano (1988, 282ff) argues in a similar way.

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  40. A complete list up to December 1997 can be found in Martínez Lago (1998, 266–73).

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  41. Rodríguez Bereijo (1998).

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  42. <u>STC 6/83, par. 4 and 6</u>.

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  43. See <u>STC 29/82, par.2, 3 and 6</u>.

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  44. <u>STC 6/83, par. 5</u>. This was latter refined in the major (but non-tax related) Rumasa case, see <u>STC 11/83, par. 5 and 6</u>. Urgency was clearly connected with the time necessary to pass an ordinary reform.

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  45. <u>STC 182/97, par. 8</u>.

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  46. <u>STC 182/97, par. 7</u>. It fully disregards an interpretation of the réserve du loi as having a direct incidence on the constitutional limits to law-decrees: “When constructing the material limit of article 86, paragraph 1 of the Constitution, this Court must not pay attention to the concrete manifestation of the principle of legality regarding a concrete issue, in this case taxation (thus, whether the limit is absolute or relative, and which concrete tax issues are to be considered within or outside the limit). What the Court must do is determine whether the decree-law has “affected” a right, duty or freedom contemplated in the first title of the Constitution. This requires taking into consideration the constitutional configuration of the relevant right or duty and the breadth and scope of the norm under review”.

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  47. <u>STC 182/97, par. 7</u>.

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  48. <u>STC 182/97, par. 13</u>.

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  49. See <u>STC 182/97, dissenting opinion by Justice Cruz Villalón</u>.

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  50. Mayer (1950).

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  51. On such precedents, see Martínez Lago (1998, 109).

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  52. This argument has been made by Justices Gabaldón López, Díaz Eimil and de Mendizábal y Allende in their dissenting opinion to <u>STC 116/94</u>.

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  53. This piece of data is taken from Toscano Ortega (1998, 288). He offers further statistical information, that helps to have an overall picture of constitutional challenges addressed to the Budget Act.

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  54. To be more precise, the rate structure of the taxes over capital gains related to the sale of the permanent residence of the taxpayer, when they are invested in the acquisition of a new residence, the norms of assessment of the base of the estate tax that aim at avoiding the taxing of nominal gains due to the inflation or introduce some peculiarities for some kinds of legal persons.

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  55. <u>STC 27/81, par. 2<u>.

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  56. For a more detailed analysis, see Rodríguez Bereijo (1995, 16).

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  57. <u>STC 27/81, par. 2</u>: “The constitutional debate, reflected in the norm which we are now interpreting, seems to have led to a compromise solution. This provision [article 134, paragraph 7 of the Constitution] rules out the discretionary enactment of taxes in the Budget Act. However, it authorizes its amendment, even if this implies substantial and deep changes of the tax figure, if and when this is foreseen by the relevant statutory norm [the substantive tax law]. At any rate, nothing prevents the Budget Act to proceed to the mere adjustment of taxes to the reality of the situation”.

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  58. Rodríguez Bereijo (1995, 26) remarks that the judgment was severely criticised, and it was blamed for the cascade of norms passed through Budget Acts.

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  59. <u>STC 27/81, par. 3</u>

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  60. <u>STC 84/82, par. 3</u>.

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  61. Or even before. In case <u>STC 63/86</u> the Court already hinted at a more precise definition of standards of constitutionality of the contents of the Budget Act. At paragraphs 10 and 11, it justified the enactment of a ceiling on the wage increase of all civil servants on the basis that it was a temporary measure and, above all, that it was closely related to the objective of guaranteeing economic stability.

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  62. <u>STC 126/87, par. 5</u>

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  63. <u>STC 134/87, par. 6<u>. The question was also raised in STC 65/90. par. 3.

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  64. <u>STC 83/93, par.3 and 5<u>.

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  65. <u>STC 65/90, par. 3</u>.

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  66. <u>STC 76/92, par. 4</u>: “To conclude, and on the basis of the aforementioned doctrine, we must refer to the criteria for the constitutional legitimacy of the inclusion in the Budget Act of subject matters different from its constitutionally defined minimal, necessary and obligatory content (the estimation of income and the authorisation of expenditure). The criteria are that these subject matters must stand in a direct relation with the income and expenditure sides of the Budget or with the criteria of economic policy of which the Budget is an instrument, and at the same time, their inclusion must be justified, that is, they must be required for the adequate understanding and the more efficient implementation of the Budget, and in general, of the economic policy of government”. See also <u>STC 195/94, par. 3</u>, <u>STC 178/94, par 3</u>.

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  67. The most articulated expression can be found in the dissenting opinion to <u>STC 178/94</u>, endorsed by Justice Cruz Villalón: “Any restriction to or condition for its actual use must be referred to a definite constitutional provision (either explicit or implicit, and at any rate derived unequivocally from the constitutional text). This is so because we are dealing with an exception to an otherwise universal and unlimited competence”.

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  68. It contains almost 120.000 words, dissenting opinions included, almost the same as this book.

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  69. <u>STC 61/97, par. 2 b)</u>

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  70. <u>STC 116/94. par. 5</u>.

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  71. <u>STC 116/94, dissenting opinion by Justice Rodríguez Bereijo, par. 3</u>.

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  72. <u>STC 116/94, dissenting opinion by Justices Gabaldón López, Díaz Eimil and de Mendizábal y Allende</u>.

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  73. MacCormick (1999, 52) refers to one concrete expedient to do so, namely, the overrepresentation of minority countries within a larger polity. Such principle seems to explain the assignment of a higher number of representatives (in relative terms to the population) to Scotland in the UK Parliament.

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  74. The full text of the third Additional Disposition of the CE says that: “Any modification of the financial and tax system of the Canary Islands shall require a previous report from the Autonomous Community or, as the case may be, from the provisional autonomous organ”.

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  75. <u>STC 35/84<u>. of 13 march, at<u> par. 6</u> (conclusion).

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  76. “Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance”.

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  77. “It is the responsibility of the public powers to promote conditions so that liberty and equality of the individual and the groups he joins will be real and effective; to remove those obstacles which impede or make difficult their full implementation, and to facilitate participation of all citizens in the political, economic, cultural and social life”.

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  78. “Everyone shall contribute to the sustenance of public expenditures according to the principles of equality and progressive taxation that in no case shall be of a confiscatory scope”.

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  79. <u>STC 8/86, par.2</u> and <u>STC 183/97, par. 3</u>.

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  80. <u>STC 209/88, par 6</u>: “However, equality must be assessed in each concrete case. It is necessary to take into account the substantive legal regime of the sphere of relationships under consideration. In tax matters, the Constitution itself has shaped and rendered concrete Article 14 in Article 31, paragraph 1, which must be taken into account. Equality before the law- before the tax law, in this case- cannot be dissociated from the principles (generality, ability to pay, fairness and progressiveness) enumerated in the article”. Cf. now <u>STC 134/96. par. 6<u>.

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  81. See, among others, <u>STC 27/81, par. 4 and 10<u>. <u>STC 8/86, par. 2<u>.

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  82. The latter at <u>STC 183/97, par. 3<u>.

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  83. Rodríguez Bereijo (1983, 84), now repeated at Rodríguez Bereijo (1998).

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  84. For an analysis, see Ruiz Miguel (1996, 76–8).

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  85. Cf. Alexy (1992a, 111).

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  86. In case <u>STC 19/87, par. 3<u>. it is possible to trace back some influence of the formal understanding of equality. The Court argues that the réserve du loi in favour of state law fosters equality because in such a way it is guaranteed that the same law is applicable to all citizens. The remark is made in a similar sense by Herrera Molina (1990). One might be tempted to say that this could be seen as a sort of “centralist” flirt of the Court. But saying this with a minimum degree of certainty will require an exhaustive analysis of the vast jurisprudence on the distribution of competences between the State and the Comunidades Autónomas. On the alleged influence of “Spanish” nationalism on the Constitution, a thorough research of the constitutional period can be found in Bastida Freijedo (1998).

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  87. <u>STC 27/81, par. 4</u>.

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  88. <u>STC 221/92. par. 5</u>.

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  89. <u>Cf. STC 37/87, par. 13</u>: “The Comunidades Autónomas (…) can set taxes which, if in respect of the principle of ability to pay, aim at realising goals or public interests recognised in the CE”. The court dealt with the question in a more open and direct way in <u>STC 186/93, par. 4</u>: “Nothing can be said against taxes with a non-fiscal purpose”, acceptance which is only limited (as in the previous judgment) to the double condition that the goal which is aimed at with the tax is constitutionally recognised and that the measure complies with the principle of proportionality.

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  90. <u>STC 37/87, par. 13</u>.

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  91. <u>STC 37/87, par. 13<u>.

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  92. <u>STC 146/94, par. 5<u>.

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  93. <u>STC 146/94, par. 6</u>: “The legislator should be concerned by the potential avoidance of the tax burden by means of stipulating artificially high wages. However, it should also undertake all necessary efforts to guarantee that the tax base reflects the wealth of the taxpayer [her patrimoine]. The latter objective cannot be compromised on the mere basis of administrative convenience or feasibility or the need to avoid manipulations to avoid the tax. The relevant measure is not proportional to the aimed goal, to the extent that the latter can be ensured by other means more sensitive to tax fairness”

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  94. <u>STC 214/94, par. 6</u>.

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  95. <u>STC 214/94, par. 8</u>.

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  96. <u>STC 214/94, par. 8</u>.

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  97. <u>STC 214/94. see dissenting opinion by Justice Gabaldón López , par. 5</u>.

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  98. <u>STC 8/86, par. 6</u>: “[The principle of equality] does not necessarily require that the statute should apply simultaneously to all those to which it intends to affect, but it does require that the criteria of progressive application of the statute should be put forward. If they lead to unequal results, they should be objectively and reasonably justified”.

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  99. <u>STC 8/86, par. 7<u>.

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  100. Musgrave (1959, 179–80).

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  101. <u>STC 27/81, par. 3</u>, <u>ATC 182/86</u>, <u>STC 19/87, par. 3</u>, <u>STC 150/90, par. 7</u>

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  102. <u>STC 37/87, par. 10</u>, <u>ATC 182/86</u>, <u>STC 150/90, par. 7</u>.

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  103. See §§ 337–9.

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  104. See Acuerdo del Consejo de Política Fiscal y Financiera, por el que se aprueba el sistema de financiación de las Comunidades Autónomas, of October 7th, 1993.

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  105. See Acuerdo del Consejo de Política Fiscal y Financiera, por el que se aprueba el sistema de financiación de las Comunidades Autónomas para el quinquenio 1997–2001, of September 23rd, 1996 (available at <u>http://www.ucm.es/info/rfiscal/cronica.htm</u>).

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  106. See an explicit formulation of this negative requirement at <u>STC 214/94, par. 5</u>.

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  107. See §§ 358.

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  108. <u>STC 221/92, par. 5 and 6</u>.

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  109. <u>STC 45/89, par. 4</u>: “The tax burden which each taxpayer should bear, the definition of ability to pay and the criteria to assess it must be determined in such a way that all taxpayers be treated equally. Differentiated treatment cannot be based on the personal condition of the taxpayers or on her personal relationships, to the extent that those cannot be regarded as relevant criteria to assess the tax burden”.

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  110. <u>STC 45/89, par. 5</u>.

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  111. <u>STC 209/88, par. 8</u>.

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  112. <u>STC 209/88, par. 9</u>.

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  113. <u>STC 45/89, par 5</u>.

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  114. <u>ATC 230/84, par. 1</u>: “to give different tax treatment to different taxpayers on the basis of the amount or source of income, or of any other social consideration relevant to determine tax fairness”. See also <u>STC 70/91, par.3, 6. 7. 8 and 9</u> concerning different rates of the ordinary contribution to Social Security funds depending on different working categories, <u>STC 186/93, par. 4 </u>concerning the definition of the scope of application of the tax by reference to the size and use at which the piece of land is put, and STC 146/94 concerning the preferential treatment given to income obtained from personal labour and the possible limits to it (<u>STC 146/94, par 3</u>). <u>STC 76/90, par. 5</u> made a bold extension of the principle to the graduation of tax penalties, that was latter on echoed in the jurisprudence of the Italian Court. Cf. Moschetti (1994). <u>STC 100/90, par 3</u> applied the same principle in the field of public expenditure (the case concerned the constitutional soundness of a ceiling on the maximum amount of public pensions), latter on applied, among others, by <u>STC 361/93, par. 2</u> (different amount of a discretionary amount on the basis of the impact that the Civil War and ensuing dictatorial regime had upon the life chances of certain individuals).

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  115. <u>STC 27/81, par. 5</u>

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  116. <u>STC 111/91, par. 2 and 3</u>.

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  117. <u>STC 27/81, par. 4</u>.

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  118. <u>STC 214/94, par. 6</u>.

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  119. <u>STC 214/94, dissenting opinion bv Justice Gabaldón López</u>.

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  120. <u>STC 134/96, par. 5 and 6</u>.

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  121. <u>STC 197/92, par. 6</u>.

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  122. Palao Taboada (1988).

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  123. Rodríguez Bereijo (1992).

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  124. <u>STC 150/90, par. 9</u>.

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  125. <u>STC 150/90, par. 9</u>.

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  126. <u>STC 37/87, par. 13</u>: “The Constitution does not contemplate the non-fiscal purposes at which taxes might be put, but their constitutional grounding can be established on those articles which deal with the guiding principles of social and economic policy. That is so because the tax system as a whole and each concrete tax are among the tools which the state has at hand in order to achieve the constitutionally mandated social and economic goals (…) The principle of ability to pay is satisfied if the tax event makes the tax burden fall upon real or potential income or wealth in the generality of cases”.

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  127. <u>STC 150/90, par. 9</u>.

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  128. Some other European Constitutions contain one. For example, the Greek Constitution says in its article 78, section 2 that “A tax or any other financial charge may not be imposed by a retroactive law effective prior to the fiscal year preceding the imposition of the tax”. This was involved in a case before the ECJ; see <u>C-183/91</u>, judgment 10 June 1993, Commission of the European Communities vs. The Hellenic Republic. The Portuguese Constitution has been amended recently in order to include a such provision, The Portuguese Constitutional Court had previously established a doctrine quite similar to the one of the Spanish Constitutional Court. See Bacelar Gouveia (1998).

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  129. Cf. <u>STC 126/87, par. 9</u>

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  130. Of course, it is fully applicable to the crime of tax fraud or to the whole regime of tax penalties, but not to substantive tax norms.

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  131. <u>STC 27/81, par. 4, 10</u> argues that the Constitution intentionally avoided the reference to vested rights. See also <u>STC 65/87, par. 13 and 16</u>, <u>STC 126/87, par. 11</u>, <u>STC 134/87, par. 5</u>, <u>STC 150/90. par. 8</u>. <u>STC 197/92. par. 4</u>.

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  132. <u>STC 27/81. par. 10</u>

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  133. <u>STC 27/81. par..10</u>

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  134. <u>STC 126/87, par. 10–11</u>, dealing with the arguments made by the Italian, German and American Constitutional Courts. However, and as Escribano (1988, 300) argues, the categories seem to have been inspired also by the classic civilist Federico de Castro. Cf. De Castro (1949, 648ff).

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  135. This was a question already hinted at in <u>STC 6/83, par.3</u>.

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  136. Cf. <u>STC 38/97</u>. However, it is not so clear that case <u>STC 197/92</u>, that concerned the amendment of the Excise Act on what concerned alcohol and alcoholic beverages was not a case of retroactivity.

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  137. Cf. the saga on the effects of <u>STC 45/89, par. 11</u> combined with Law 20/89, establishing temporary arrangements for the collection of the Income Tax, following judgment <u>STC 116/94</u>.

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  138. <u>STC 38/97, par. 5</u>

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  139. See <u>STC 126/87, par. 8</u> and <u>STC 173/96, par. 4</u>

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  140. <u>STC 126/87, par. 12</u>

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  141. All the arguments in <u>STC 173/96, par. 5</u>.

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  142. <u>STC 178/92, par. 12</u>.

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  143. See first paragraph of the dissenting opinion.

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  144. <u>STC 178/92, par. 13</u>: “The income tax is a personal, subjective and periodic tax which plays the major role in our tax system. Those features raise the stakes. A legal norm which ammends [the income tax] and affects facts or relationships which were already in the process of being constituted has therefore an impact on the legal security of taxpayers”.

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  145. <u>STC 182/97, par. 4, 5, 13</u>: “Nobody has questioned the extraordinary, unforeseeable character of the circumstances that led to the decree-law. Nobody has denied that the increase of the public deficit was threatening the basic equilibrium of our economy, and thus severely affecting the chances of complying with one of the Convergence criteria (that made mandatory to keep the deficit below three per cent of the GNP). That was necessary in order to be part of the Monetary Union, as envisaged in Articles 104 C, 109 E and others of the Treaty of the European Union, signed at Maastricht (…) Given the dimension and characteristics of the problem, a structural public deficit beyond control at the time at which economic convergence with the other member states of the European Community was set as an essential political priority, constituted, in our judgment, a sufficient ground to adopt normative measures that will change instantaneously the legal framework (…) The worrying growth of public deficit during the first two terms of 1992 (due to reasons which is not necessary now to analyse) posed a serious threat to the health of public finances and endangered the fulfilment of one of the basic convergence criteria (to keep the deficit below three per cent of the GNP) required to enter the Monetary Union foreseen in the Treaty on the European Union, signed at Maastricht. This goal was not a priority not only for the incumbent government, but also for most of the parties represented in Parliament, who at the end of the day are representative of the will of the Spanish people, according to article 66, paragraph 1 of the Constitution. Thus, it cannot be doubted that the furthering of the public interest, in an economic sense, could give support to the measures contained in Act 28/1992”.

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  146. <u>STC 182/97, par. 13</u>: “On the other hand, the decision to introduce changes in the Personal Income Tax in order to fight the rising public deficit cannot be said to have been capricious. As it is said in the motivation of Act 28/92, this decision is based on the generality of this tax figure, which renders a change on it more effective in the short run than similar changes in other less flexible or more selective taxes”.

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  147. Cf. <u>STC 27/81. par. 10</u>.

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  148. The Court argues in those judgments that the retroactivity of tax norms cannot be established according to arbitrary criteria.

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  149. §§320–2.

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  150. Cf. §148.

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  151. As it has already been indicated, a full study of this question will require an independent research. Instead of that, which cannot be undertaken here, The reader might allow me to present her with a puzzling example. In case STC 206/93, the Abogado del Estado (one of the official attorney in charge of defending the interest of the State in legal procedures) argued in favour of the different treatment between individuals and the Public Treasury the principle fiscus non debet usuras. As it was argued in his dissenting opinion by Justice Rodríguez Bereijo, one can doubt the relevance of such a principle in a democratic state.

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  152. Cf. §397–8.

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  153. <u>STC 76/90, par. 3</u>: “The constitutional statement of the duty to contribute to the financing of public expenditure according to individual ability to pay implies a mandate which binds public powers and citizens alike and that is determinant of the nature of the tax relationship (…) For public powers, this constitutional duty imposes specific standards and grants special prerogatives aimed at ensuring that taxpayers comply with their duty”.

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  154. Among others, see <u>STC 76/990, par. 3</u>, <u>STC 297/93, par. 3</u>, <u>STC 23/97, par. 5</u>.

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  155. Among others, see <u>STC 76/990, par. 3</u>, <u>STC 297/93, par. 3</u>, <u>STC 23/97, par. 5</u>, <u>STC 297/93, par.3</u> contains a specific reference to the relevance of the legal good (el bien jurídico) that is at stake.

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  156. <u>STC 297/93, par. 3</u>, that refers back to <u>STC 2/87</u>.

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  157. See <u>STC 76/90, par. 3</u> and <u>ATC 3/92</u>.

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  158. <u>ATC 3/92</u>.

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  159. <u>STC 76/90, par. 7</u>

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  160. This was the argument for denying the amparo in <u>STC 110/84, par. 2</u>. Similar arguments in <u>STC 62/97, par.1</u> (concerning the effects of <u>STC 45/89, par.11</u> combined with law 20/89) or in <u>STC 129/97, par. 2</u> (vague and unsupported argument that the tax authorities would accepted in some other cases similar arguments to the ones made by the appellant).

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  161. This is one of the arguments made by the court in <u>STC 110/84, par. 2</u>

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  162. <u>STC 141/88, par. 6</u>.

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  163. <u>STC 141/88, par. 9</u>.

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  164. <u>STC 76/90, par. 7</u>.

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  165. <u>STC 62/97, par. 4</u>. Justices García-Mon y González-Regueral and de Mendizábal y Allende disagreed. They argued that the majority had offered a too formalistic interpretation of the right to the effective protection of judges and courts, and that this became strikingly clear once we considered that the appellant was not the one who had appealed to the Supreme Court, happy as she was with the judgment given by the lower court.

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  166. <u>STC 73/96, par. 4</u>.

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  167. <u>STC 76/90, par. 7</u>.

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  168. <u>STC 76/90, par 4</u>.

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  169. <u>STC 137/85, par. 3</u>.

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  170. There are four main jurisdictions (or kinds of courts according to the subject of the controversy) in the Spanish system, namely civil, penal, labour and administrative. Concerning the courts in which a case is tried first (primera instancia), judges tend to deal simultaneously with civil and penal matters, although in big judicial districts (typically, big cities) judges are specialised in one of the two subjects.

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  171. <u>STC 50/95, par. 4</u>.

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  172. <u>STC 50/95, par. 4</u>.

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  173. <u>STC 110/84, par. 5</u> and <u>STC 143/94, par. 6</u>.

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  174. <u>STC 143/94, par. 6</u>.

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  175. <u>STC 110/84, par. 6</u>.

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  176. <u>STC 143/94, par. 6</u>.

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  177. Cf. § 47.

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  178. <u>STC 61/84, par. 3</u>.

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  179. <u>STC 32/82, par.3</u>, <u>STC 294/94, par. 3</u>.

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  180. <u>STC 76/90, par. 9</u>.

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  181. <u>STC 206/93, par. 2</u>.

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  182. <u>STC 69/96, par. 6</u>.

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  183. <u>STC 76/90, par 3</u>.

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  184. Sánchez Serrano (1992).

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  185. <u>Dissenting opinion of Justice Rodríguez Bereijo to STC 206/93</u> and <u>STC 69/96</u>, par. 5.

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  186. See §§256–60.

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  187. <u>STC 110/84, par. 3</u>: “It is rather unnecessary to state once again that the breadth and scope of the tasks undertaken by the state dramatically increase the level of public expenditure. This render the duty to contribute in fair terms to share such a burden an especially urgent one. If that is not so, the tax burden will be allocated unfairly. What is not paid by those who evade taxes when they should ends up on the shoulders of others with more civic sensitivity or with less chances to evade. The importance of efficient and alert tax monitoring authorities cannot be underestimated, even if it might be felt as disturbing and unpleasant”. See also <u>STC 76/90, par. 3</u>.

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  188. <u>STC 126/87, par. 9</u> and <u>STC 197/92, par.4</u>

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  189. <u>STC 182/97, par. 5</u>.

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  190. This basically refers to the emergence of the individual standpoint as a relevant one (see <u>STC 69/96, par. 6</u> in which the Court explicitly looks at the issue from the point of view of the individual) and to the invocation of standards of the common law (generally private law) as applicable to tax relationships (something that is sort of anathema for a paradigmatic understanding of tax law). See <u>STC 23/97, par. 4</u>, in which the Court makes reference to norms contained in the Code Civil.

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  1. ARENA, Norwegian Research Council, Norway

    Agustín José Menéndez (Senior Researcher)

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Menéndez, A.J. (2001). Reconstructing Constitutional Reasoning on Tax Matters. In: Justifying Taxes. Law and Philosophy Library, vol 51. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9825-5_7

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  • DOI: https://doi.org/10.1007/978-94-015-9825-5_7

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