The conclusion of the court could have implications for other municipal taxes, in relation to which the regulations establish similar rebates.
In the field of Real Estate Tax (IBI), it is common for local ordinances to establish rebates in cases where the activity conducted on the property is declared to be of special municipal interest or utility by the plenary body of the relevant municipal council.
However, municipal ordinances do not usually clarify the time period that the City Council Plenary has to resolve the request for a declaration of special municipal interest or utility, nor the effects of failure to resolve within that period, and so, in the absence of a specific provision in municipal regulations, the deadline for resolving such a request should be the general three-month period set out in Article 21.3 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations (Law 39/2015).
In this area, in cases where the relevant municipal council does not resolve the request for a declaration of special municipal interest or utility within the deadline, the question arises as to what the effects of such failure to resolve should be; in particular, whether the request can be deemed granted by positive administrative silence.
This is the controversy that has arisen in an appeal whose legal representation corresponds to Garrigues, in which we have been arguing, from the taxpayer’s position, that the request for a declaration of special municipal interest or utility is administrative in nature and, therefore, in the absence of a specific provision in municipal regulations regarding failure to resolve within the deadline, Article 24.1 of Law 39/2015 should apply. According to this article, in procedures initiated at the request of the interested party (such as the declaration of special municipal interest or utility), the expiration of the maximum period without an express resolution having been notified would suffice for the interested party to consider their request granted by positive administrative silence.
This was understood by the Administrative Court No. 3 of Madrid, which recognized that the declaration of special municipal interest or utility should be deemed granted by positive administrative silence, insofar as such declaration, although inserted in a tax procedure, does not properly have a tax nature but an administrative one, so administrative regulations apply and, in particular, the silence regime established in the aforementioned Article 24.1.
However, the High Court of Justice of Madrid adopted a different interpretation, considering that, since the declaration of special municipal interest or utility is linked to the request for a tax rebate, both requests should be subject to the same regulatory regime and that, therefore, the meaning of the silence should be the same in both cases. Based on this, the aforementioned court turned to the first additional provision of Royal Decree 1065/2007, of July 27, approving the General Regulation on tax management and inspection, which establishes negative administrative silence in procedures for granting tax benefits in IBI, the court considering that the same negative administrative silence is applicable to the failure to resolve the request for a declaration of special municipal interest or utility within the deadline.
Against the judgment of the High Court of Justice of Madrid, an appeal in cassation was prepared, which has recently been admitted by the Supreme Court in its order of May 29, 2026, establishing as a matter of objective cassational interest to determine whether “in the absence of an express resolution within the maximum legal period for a request for a declaration of special municipal interest or utility, provided for in Article 74.2 quater of Royal Legislative Decree 2/2004, of March 5, approving the consolidated text of the Law Regulating Local Finances, as a prior regulatory requirement for the granting of a rebate in the Real Estate Tax, the general regime of positive administrative silence proper to the common administrative procedure applies pursuant to Article 24.1 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, or whether, on the contrary, it is subject to specific tax regulations, making applicable the regime of dismissive silence established for procedures for granting tax benefits in Additional Provision One, Section One. 68 of Royal Decree 1065/2007, of July 27, approving the General Regulation on the actions and procedures of tax management and inspection and the development of common rules for tax application procedures”.
The resolution of this issue may have special relevance in the field of local taxation, given that the regulations of other municipal taxes also contain similar rebates; therefore, the situation raised in the appeal is easily repeatable and may affect not only the IBI, but also the Business Activities Tax, the Tax on Construction, Installations and Works, or the Tax on the Increase in Value of Urban Land.
