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José Vicente Morote analyses non-taxable public asset profits

| News | Public and Regulatory Law

Conference on the Public Sector Contracts organized in Alicante by the Official Association of Industrial Engineers of the Comunidad Valenciana

The Constitution has established as a means of covering general expenses, public economic profits, a category of public income, which includes, on the one hand, taxes -taxes, fees and special contributions- and, on the other hand, non-taxable public asset profits, which do not have the nature of taxes.

This was explained by José Vicente Morote, partner of Andersen Tax & Legal and director of the Department of Public and Regulatory Law of the firm, during his participation in the conference on the Public Sector Contracts Law organized in Alicante by the College of Industrial Engineers of the Valencian Community, which also involved Enrique Sáez Solano, President of the Official College of Industrial Engineers in Alicante, Marcial Betanzos. Head of the Legal Department of Global Omnium, and José Eugenio Soriano, Professor of Administrative Law.

During his speech, José Vicente Morote recalled that Law 9/2.017 on Public Sector Contracts regulates for the first time in our legal system the non-taxable Public Asset Profits Law. Through this Law, the General Tax Law, the Law on Public Fees and Prices and the Revised Text of the Law Regulating Local Treasuries are modified. "The entire regime of this figure is regulated in these four new precepts that are introduced in the aforementioned rules," said the partner of the firm, who added that "are a category of new public income and distinct from any others, so the doctrine of the Constitutional Court and other judicial and administrative bodies and scientific doctrine should be limited, based on the figures that are regulated, being still a type of income little or not studied at all."

Thus, he insisted that this is a different category of taxes and this implies that the constitutional tax principles do not apply, although all the principles that affect the performance of the Public Administration in general, such as respect for equality and the principles contained in article 9.3. of the Constitution, do. "Its regulation must be established for local entities by a non-tax Ordinance and its system of contestation regarding liquidations is private," he said.

Morote maintained that there are three defining characteristics of non-taxable public asset profits: they are "payment obligations" imposed by law, they must be "coercive" and pursue a "public interest purpose."

At this point, he stressed that "it is not important to delimit a public profit that the beneficiary of the income is a public entity or, on the contrary, is a private person."

Likewise, he added that non-taxable Public Asset Profits are not taxes, although it shares with them, the reserve of Law for its establishment and regulation of its essential elements and the fact that it is a coercive obligation, but they are not subject to the regulation of other aspects of taxes. For the Local Administrations, he said, the regulation will be made by ordinance and will not be applied supplementarily, the tax legislation would unless expressly remission. In this way, he pointed out, they are not prohibited from being created by the Budget Law, nor are general or special tax regulations applicable to them.

Finally, he stated that non-tax benefits cannot be confused with other public revenues such as prices -whether public or private- since they do not have the condition of public patrimonial benefits, so, among other things, they do not have to be established by law and are voluntary.

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