The Supreme Court has issued several judgments in which it assumes the cancellation of the regional component of the tax on hydrocarbons in force between 2013 and 2015. The judges, as is customary after a judgment of the European courts, apply the judgment Luxembourg on this issue and declares the nullity of the tax that the autonomous communities have applied for five years, but he also asks who can recover the money overpaid for this tax declared irregular. The transport companies, on which the tax was finally passed on by the big oil companies, can resort to civil proceedings or seek financial liability from the State. Oil companies, for their part, can claim directly from the autonomous community to which they paid.
The regional section of the fuel tax was launched by the government of Mariano Rajoy and the PP in 2013 and remained in force until 2018, when it was unified into one uniform rate for the entire national territory. A period of five years during which, according to different calculations, the autonomous communities collected between 5,000 and 6,500 million euros. The tax in its autonomous section, according to what the Court of Justice of the European Union declared this year, is illegal.
The third chamber of the Supreme Court was responsible for applying the effects of this resolution in several practical cases. Three decisions which not only certify the illegality of the regional tax section, as Luxembourg said, but which also specify who can recover this money and how to do it. Study the case of a transport company – which denounced that oil companies passed on the tax when paying for gasoline – and the DISA group specializing in the transport and distribution of fuel.
In practice, the Supreme Court’s rulings open the door for both parties to demand the return of money overpaid to the autonomous communities. In the case of transport companies, the judges point out that they do not have the right to do so directly with the Public Treasury, because the tax was passed on to them when paying for gasoline, they were not subject to to the tax. For example, the applicant company paid nearly 64,000 euros to various oil companies for the impact of this tax.
These companies cannot complain directly to the Treasury, but they can take legal action to get the money back from the oil companies that passed on the tax. By civil procedure, explains the Supreme Court. And as is usual in cases where European courts cancel a tax, invoking the financial responsibility of the legislative State.
This is the path that awaits transport companies which, for five years, have seen oil companies increase their bills to pass on the regional part of the tax. As for the oil companies, the Supreme Court understands that they are the ones who initially bore the tax and who can directly claim reimbursement. It was applied, they say in these sentences, to the phases of “production and distribution”. No to consumption.
Taxpayers have the right, says the Supreme Court, “to request from the administration the restitution of undue income, arising from a tax contrary to Union law, through the rectification of the corresponding self-assessments”. And this obligation corresponds to the autonomous communities, regardless of the internal adjustment that could be made.
