Opinion | The Phantom Amnesty

On March 30, 2012, the Government of Mariano Rajoy granted a generous measure of grace to taxpayers who, as of December 31, 2010, had income or assets not declared to the Tax Agency. On the first of the indicated dates, Royal Decree-Law 12/2012 was approved, which allowed personal income tax taxpayers, companies or non-residents to regularize hidden income or assets (first additional provision). To this end, the taxpayer had to submit a declaration – the special tax declaration, which would be formalized during the month of November of said year – comprehensive of the hidden assets and pay 10% of their acquisition value. In exchange, Rajoy’s government exempted him not only from the application of ordinary tax rates, but also from the payment of penalties, interest and surcharges. Although it did not have that nature in the strict sense, the Popular Government’s pardon measure has always been called ‘tax amnesty’. Rajoy’s Government not only granted its beneficiaries administrative impunity. He also provided many criminals with the privilege of criminal compensation for the possible commission of crimes against the Public Treasury.

On June 25, 2012, the Socialist Parliamentary Group in the Congress of Deputies filed an appeal for unconstitutionality against the first additional provision of Royal Decree-Law 12/2012. The appeal was based on two reasons: (I) Violation of article 86.1 CE, since the duty to contribute cannot be affected by Decree-Law. In this sense, the decree-laws cannot affect the rights, duties and freedoms of citizens regulated in Title I CE, where article 31.1 CE is located. (II) Violation of article 31.1 CE, which proclaims the right to tax equality. The Constitutional Court (TC), through a ruling issued on June 8, 2017, declared the first additional provision of Royal Decree-Law 12/2012 unconstitutional and void.

Let us remember that the appeal had been filed for two reasons. The first, of a formal nature (possible violation of article 86.1 CE). The second, for a matter of substance (a hypothetical violation of article 31.1 EC). Well, in its ruling (FJ 3) the TC decided to examine with priority the reason related to article 86.1 CE, ruling on the validity or not of affecting by Decree-Law the duty of all citizens to contribute to the maintenance of expenses public. This reason raised by the Socialist Group, when upheld by the TC, was the cause of the declaration of nullity of the questioned provision. In its virtue, “…this declaration of unconstitutionality of the first additional provision of Royal Decree-Law 12/2012, because it contradicts article 86.1 CE, makes it unnecessary to go into the damage to the principles of economic capacity, equality and proportionality included in article 31.1 CE, also alleged by the appellant deputies” (FJ 6).

It is true that, in its legal basis 5, the TC expressed serious (substantial, substantive) reproaches to the Government for the approval of the ‘tax amnesty’. The highest interpreter of the Constitution demonstrated the amnesty as an attack against the pursuit of a fair tax system. The TC not only criticized that a very low rate of tax (10%) was applied to debtors in regularization, but that they were also exempt from paying penalties, late payment interest and surcharges. More: instead of fighting against tax fraud, Decree-Law 12/2012 was a gift that took advantage of the worst (non) taxpayers. It meant the State’s abdication of its mission of making everyone contribute to the maintenance of public spending (article 31.1 CE) and the legitimization of the behavior of the most unsupportive citizens towards others.

However, the content of the aforementioned foundation 5 suffers from extensive inconsistency. It is an island that does not appear on the geographical map drawn by the ruling itself in which it appears. It is an inorganic loose verse. It is not an argument related to the ruling of the sentence. Legally, it would only make sense if the injury recognized by the TC had been suffered by article 31.1 CE (tax equality, economic capacity and fiscal progressivity). And we have already seen that the examination and ruling of STC 73/2017 stopped at the door of said precept because the contested provision of Royal Decree-Law 12/2012 had already been declared null, exclusively, for not respecting article 86.1 CE . .

I don’t like ad hominem reflections to understand the meaning of things. But legal phenomena outside a dramatis personae are rare. The Speaker of STC 73/2017 was Judge Andrés Ollero Tassara. Ollero, a prestigious professor of Philosophy of Law, had been a deputy in Congress – for 17 years – in the ranks of the Popular Party. From here, and thanks to Mariano Rajoy’s ‘little finger’, Don Andrés had jumped over the TC fence. How, then, did he reject himself as he rejected the hand that until then had fed him? Why such cruelty from a coreligionist towards his political brothers? Perhaps a trivial personal incident has something to do with it, hardly significant in a world in which meanness does not abound. Shortly before the ruling in question, a strident rumor ran through the corridors and surroundings of the Court: Don Andrés would be the new president of the TC. But not. The position ended up falling to the side of Don Juan José González Rivas, who, like Don Andrés, orbited the ‘popular line’. Had Mr. Ollero read ‘The Revenge of Don Mendo’? Do the members of ‘The Work’ read secular texts? Who knows!

Be that as it may, the value judgments of FJ 5 are mere obiter dicta and have no connection with the operative part of the sentence. Or what is the same: the first additional provision of Royal Decree-Law 12/2012 was not declared unconstitutional for harming the equality or legal capacity of taxpayers, but for having “travelled” within a Decree-Law.

But there are people – some with high responsibilities and public powers in their charge – who like to shoot and mess. As the current holder of the Treasury portfolio, Mª Jesús Montero, promoter of Law 11/2021, to date her measure is a star against fraud. In its explanatory statement (section With the ineffable culmination of its thirteenth article: “The establishment of any extraordinary instrument of tax regularization that may involve a reduction of the tax debt accrued in accordance with current regulations is prohibited.” Quite a ‘marcianada’, since, if fiscal regularization is prohibited by the Constitution, why double the effort by approving a simple ordinary law?

Thirteen years after Rajoy and Montoro’s ‘gracieta’, amnesty is once again in fashion in the gossip of all the towns of Spain. Although now the political climate is very different and a thermal inversion phenomenon reigns on the peninsula and adjacent islands. While in 2012 the Government party gave amnesty to its fraudster friends, now it is the coalition of ‘the poor in spirit’ (Matthew 5:3) that – if the dissidents of the PSOE do not remedy it – will grant the clean slate for the cantonalists.

Apart from the exchange of stamps between Carthaginians and Romans, I think it is worth distinguishing the nuance that separates a tax amnesty from another exclusively partisan one (the two amnesties are, after all, of a political nature) in the current context of the investiture of the President of the Government. The fundamental drawback that can be opposed to fiscal grace measures is that, despite the objectives that they aim to achieve in the short and medium term (raising income to increase tax bases and collecting revenue in lean seasons for the Treasury), in the long run They encourage fraud, since many taxpayers will make the following calculation: what is the point of paying taxes tomorrow if a tax amnesty will be declared the day after tomorrow?

However, despite all its drawbacks (moral and practical), a tax amnesty neither destabilizes the State nor calls into question the validity and validity of democratic institutions. On the other hand, an eventual amnesty for those responsible for the events that occurred in Catalonia in the fall of 2017 would legitimize the behavior of the Catalan coup plotters. And, of course, it would disavow the Spanish rule of law and its primary source, the 1978 Constitution. A factual justification would be created ex nihilo, a de facto way as a springboard to conquer political power.

Attention. “When a representative fails to fulfill his existential task, no constitutional legality of his office will save him. When a creative minority, in the words of Toynbee, becomes a dominant minority, it is in danger of being replaced by a new creative minority” (Eric Voegelin) .

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