FACTS

Urbanización Camposol.

The issue raised is the entitlement by the municipality of Mazarron to collect property taxes (IBI), to holders of property in this development, taking into consideration the current conditions of both the houses and the urbanization itself.

The Urbanization is neither completed nor taken over by the City Council. It also lack garbage collection services, mail collection, street lighting, and a water supply of part of the development. In addition, there are deficiencies for vehicle access, roads, pavements ..etc. Many homes also lack of Certificate of Habitation.

APPLICABLE LAW:

Royal Decree Law 2 / 2004 of 5 March, approving the revised text of the Law Regulating the Local Municipalities. (Regulation of IBI in Articles 60 to 77).

Royal Decree 1 / 2004 of 5 March, approving the revised text of the Law on Real Estate Catastro. (Arts. 6.8 definitions of real estate for catastral purposes)

Ayuntamiento de Mazarrón. Ordinance Governing the Property Tax.
Catastral

Revisión Catastral made by the Ministry of Finance in 2007.

Current Planning: Review adjustment of the plan adopted by resolution dated 9 May 1991 by the Consejeria of Territorial Policy and Public Works of the CARM. (The draft revision in progress of 2006 is not even initially approved as at 19/2/2010)

Law Decree 1 / 2005 of 10 June, which approves the revised text of the Land Law of the Region of Murcia. (Land Classification arts. 61-66)

General Tax Law. (Articles 163 et seq. In relation to payment of tax procedure)

JURISPRUDENCE ANALYZED:

STS 3rd room as C-Advo. 5th section of 7/2/2006 (Rec 8086/2002). Urban Land/ Soil criteria to meet for the classification of soil as ” Urbano”.

STS 3/10/1995, 19/5/1995. For an urban soil to be considered as such, it is not enough to be provided with road access, water supply, waste disposal and power supply with the appropriate characteristics to serve on the building that exists or where it is built, but also that the soil is inserted into the urban network, ie. there is a basic urbanization perimeter formed by lines serving a network of water supply and sanitation, electricity and which can serve to ground, and this, by its situation is not completely isolated from the existing urban network.
23/12/2004 STS, STS 7.6.1999.

3/02/2003 STS AND STS 15.11.2003. “The mere existence on a plot of land of urban services required, is not sufficient for classification as urban land if that plot is not located in the urban network”.

ANALYSIS

All taxes, whether local, regional or national, are composed of three basic elements, ie, the taxable event, or event giving rise to the payment of tax, the taxpayer or person legally obligated to pay the duty and the accrual or tax period, which is the point in time in which the duty is payable legally.

In the case, and as for the real estate tax (IBI), its elements are those indicated below:

a) It is the taxable event, in accordance with Art. 61 RDL 2 / 2004 Ref Text Local Revenue law governing the ownership of the rural and urban real estate and buildings of special features of the administrative concession rights, property right surface, real right of usufruct and ownership rights .

For the purposes of this tax, shall be considered rustic real estate, urban real estate and real estate special characteristics, those as defined in the rules governing the Real Estate Catastre.

DEFINITION OF REAL ESTATE PROPERTY FOR CATASTRAL PURPOSES: (Royal Legislative Decree 1 / 2004 of 5 March ss. 6-8): It is considered real property for catastral purposes:

- The plot of land or portion of the same nature, located in a municipality and closed by a polygonal line that delimits the spatial scope of property rights and of the buildings located in that area.

The urban or rustic character of the property depends on the nature of the soil (classified or defined by urban planning).

Art 7.2.d. Is defined as soil of urban nature, that which is occupied by nuclei or settlements of population, even if isolated from the urban core, irrespective of the habitat where they are located and whatever the degree of concentration of buildings.

Art 7.2.e. The soil that has been transformed because it has the urban services provided by planning legislation, or, failing that, by having access road, water supply, drainage and electricity supply.

b) As to the person liable to tax, natural persons and legal entities who hold the ownership rights, establishing the taxable event and the tax assessment. (Art. 63 RDL 2 / 2004 Text Ref. law governing local government finances.)

c) As to the entitlement and tax period, the tax becomes due on the first day of the fiscal year, which coincides with the calendar year. The facts, events and businesses that must be subject to declaration or communication to the Catastro Inmobiliario will have effectiveness in the accrual of the tax, immediately after the time they produce catastral effects. (S. 75 RDL 2 / 2004 Text Ref. law governing local government finances.)

CONCLUSION:

The IBI is a tribute to local character whose taxable event is the ownership of certain property rights in rural and urban soil at first of January of each year. The character of the property depends on the nature of the soil.

The nature of the soil of Camposol, is classified for Catastral means as URBANA, a category that has been assigned by the Dirección General del Catastro under art. 7.2.e and art. 62 of the consolidated text of the Land Law of the Region of Murcia.

However, in the current Mazarrón PGOU, Camposol is classified as unscheduled developable land, lacking the necessary infrastructure, according to the above referenced provision, necessary to consider it as urban soils.

There is case law of the Supreme Court stating that the mere existence on a plot of urban services, is not sufficient for classification as urban land if that is not located in the urban network.

In Camposol, it can be found the fact that the works of urbanization are not taken over by the City, due to the fact that they are incompletely implemented and the existence of serious deficiencies in the works already executed.

We understand that urbanization Camposol is not incardinated in the urban network, due to the factual situation of their services (no garbage collection service, private water supply sectors B – F, lack of street lighting, total abdication by the municipality in terms of services and audit work on the developer regarding the execution of works)

We also understand that while there is a jurisprudential basis for attacking the status conferred as urban land, there are also sentences that are pronounced in the opposite direction. However we understand that because the sentences are contradictory, it could result in a ruling in our favour in the Courts of Administrative Litigation.

Should it be able to demonstrate that it is not urban land, the City would not issue IBI receipts for that concept, since the situation of the owners of Camposol is not subsumed in the corresponding taxable event.

In any case, the receipts are to be contested in the voluntary payment period. Besides being contested or not, receipts are required to be paid, because the mere appeal does not suspend its enforceability, which means that although such receipts are being questioned, the recovery procedure continues and the “via de apremio” would start immediately with the appropriate administrative procedure towards forced collection.

In that case, the amount of receipts would increase to 20%, and if still not paid by the owners, the Agency shall proceed to collect it through house owners for the amount of IBI plus surcharges for apremio (urgency), beginning with bank accounts.

This report is issued as a first study of the legal reality exposed, with no additional considerations other than those submitted by the owners of the Camposol Residents Association, without prejudice to other criteria that in the same or different direction could be issued.