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Antonio Vázquez del Rey, Professor of Financial and Tax Law, University of Navarra

The Church's IBI

Wed, 30 May 2012 10:36:01 +0000 Published in La Razón

For several weeks we have been witnessing the attacks that, from different political positions and "lobbies", are being made against the legitimacy of the exemption of the IBI. How is it possible, it is said, that a State whose Constitution establishes that "all shall contribute to the support of public expenses" and which, in addition, proclaims itself to be non-denominational, exempts the Church from the payment of the IBI? Does this status not constitute a privilege, particularly reprehensible in the context of the current economic crisis, with a status of serious public deficit in the municipal coffers? Leaving aside the demagogy that often flourishes in this subject of debates, several considerations should be made.

First of all, the Constitution establishes a principle of cooperation of the State with the religious denominations rooted in Spanish society that, ultimately, is rooted in the recognition of the fundamental right to religious freedom. Within this context, the agreement on Economic Affairs with the Holy See, of January 3, 1979, and the cooperation agreements of 1992 with other legally recognized religious confessions, establish a mixed IBI exemption , for which purposes it is not enough that the real estate belongs to the Church, but it is also necessary that it is destined to certain activities -cult, pastoral activity, etc.-. In the particular case of the Catholic Church, the agreement on Economic Matters is an international treaty, which implies that the State cannot unilaterally dispose of its contents, unless it proceeds to denounce it. This solution seems unlikely, both because of the deterioration of the International Office and of its own external image and, above all, because today the problem lies elsewhere.

It is not only that the city councils cannot suppress a exemption foreseen in a rule of legal rank, nor to underline the loss that this would suppose for the valuable activity of attendance social and charitable, of Education or sanitary, that the Church carries out; nor to note the gap that exists between the real estate patrimony of the Church and its economic utility; nor that a good part of the real estate of the Church is part of the Spanish Historical Patrimony, and therefore, only for this reason they are already exempt of the IBI. The basic problem is that the exemption of IBI applicable to the Church is part of the tax regime applicable to non-profit entities.

Law 49/2002, of December 23, 2002, establishes the exemption of all real estate owned by non-profit entities, with the exception of those that are used for economic operations that are not exempt from Corporate Income Tax. This is not a privilege of the Church, since the same treatment applies to any legally recognized religious denomination (federations of Evangelicals, Israelites, Islamic Commission); and furthermore, the real estate assets of any non-profit secular entity (foundations, public utility associations, NGOs) benefit from the IBI exemption in the same terms as the Church. Under these conditions, there is no doubt that suppressing or modifying the exemption of the Church would entail discrimination on the grounds of religious beliefs, which is absolutely forbidden by our Constitution. From another perspective, it could even be asked whether, in view of the recent CIS surveys, a revision of the exemption applicable to the real estate assets of political parties, business organizations, NGOs that dubiously serve the general interest, etc., all of them located under the regime of non-profit entities, would not respond better to the general opinion. In the end, only from a general revision of the tax regime applicable to non-profit entities -all of them- would it be possible to admit a modification of the exemption applicable to the Church, with a result within the terms established by the agreement on Economic Affairs of 1979. We will only say in this sense that Law 49/2002 was greeted at the time as a step forward in the promotion of private participation in activities of a general nature.