The rate violates the General Tax Law and the principle of legal reserve
Onalia Bueno's draft ordinance uses the legal route for the creation of rates to design a tax on overnight stays
NC-bc demands that those registered in the municipality be exempt from payment
At the plenary session of December 12, 2024, Onalia Bueno and her governing group initially approved what they called the first tourist tax promoted by a city council in all of Spain.
The justification for this decision was based, according to the technical report of the ordinance, on the need to combat the deficit generated as a result of providing services to a larger population than actually contributes to supporting the public coffers.
The document stated that the number of real inhabitants was around 48.000, compared to the 21.000 registered residents in the municipality, which, according to the council, affected the correct provision of these services. In addition, the proposed tax ordinance, designed by the Mogán Council, required the residents of the municipality to pay the tax if they stayed in a tourist establishment located in the municipality.
Thus, and with the period for objections from NC-bc open, the councillors of the nationalist party, Juanma Gabella and Javier Romero, presented objections against the tourist tax project of Onalia Bueno, through which they conclude that the proposal is null and void, as it violates the General Tax Law (LGT) and the Constitution.
For the nationalist party, the proposed rate not only infringes art. 2.2a of the LGT, by not defining a taxable event clearly, but also, tourists do not receive in a particular way the service provided, what is more, the City Council does not define which services and/or activities are provided to those who are obliged to pay, and simply establishes that the payment of the fee is calculated per day spent overnight, which for NC-bc means the creation of a tax on overnight stays.
Another reason argued by the opposition councillors is that Onalia Bueno's project violates the principle of the reserve of law, enshrined in art. 133 of the CE, according to which the original power to establish taxes corresponds exclusively to the State. Mogán has opted to design a tax using the legal route of the rate.
In this regard, councillor Juanma Gabella, in charge of explaining the allegations raised by the nationalist party, added that Onalia Bueno's decision contradicts not only the 24 tax ordinances approved by the Mogán Town Hall, as regards the correct definition of the service, but also constitutes a surcharge on services whose provision is established by an ordinance. For NC-Bc, Onalia Bueno's "tax" forces people to pay twice for the same thing, since residents registered in Mogán and business owners already pay the rate for water supply, waste collection, as well as for sewage and purification, creating this new rate means introducing a surcharge to the existing ones.
The straw that broke the camel's back for the nationalist party was the errors in calculating the tax base, as well as the fact that the draft ordinance does not introduce any exemption to the payment of the tax, nor does it take into account the economic capacity of the tourist to modulate the amount to be paid.
For NC-bc, the tax base lacks the utmost rigor, since it has not considered the subsidies that the Mogán City Council receives to finance the services included in the report. Likewise, the amount of the rate, €0,15, is the same for everyone, without taking into account that the purchasing power of someone who stays in a five-star hotel is not the same as someone who stays in an apartment, thus violating the principle of economic capacity included in art. 31 of the Constitution, and art. 8 of the LGT.
On the other hand, NC has proposed introducing exemptions and/or bonuses to the rate for all those registered in the municipality of Mogán, which is perfectly legally sound.
For NC, the draft ordinance of the Mayor of Mogán is null and void and should not be definitively approved to prevent it from coming into force.
According to the councillor, Juanma Gabella, this ordinance is not only intended to balance the books, but it is also the way in which Onalia Bueno manages to gain media attention and notoriety. Being a pioneer in making a fool of herself damages the image of an entire municipality. Therefore, he hopes that common sense prevails, and that some technician from the Mogán Town Hall is capable of defending the general interest and explaining to Onalia Bueno that what she is doing is a botched job and that it is also not legal.
