8.2.2.1. Amount of capital gains and losses
The amount of capital gains or losses will be:
-
In the case of onerous or lucrative transfer, the difference between the acquisition value and the transfer value of the assets.
-
In other cases, the market value of the assets or proportional parts, where applicable.
If improvements have been made to the transferred assets, the portion of the sale value corresponding to each component thereof will be distinguished.
Acquisition value (art. 35 and 36 Law)
The acquisition value will be formed by the sum of the following concepts:
-
The actual amount for which said acquisition was made.
When the acquisition was for profit, the actual amount will be taken as the result of applying the rules of the Inheritance and Gift Tax (art. 36 of the Law) and may not exceed the market value.
In the lucrative acquisitions of companies or shares referred to in section 6 of article 20 of Law 29/1987, of December 28, on the Tax on Inheritances and Donations, the donee will be subrogated in the position of the donor with respect to the values and dates of acquisition of said assets (art. 36 Law).
-
The cost of the investments and improvements made to the acquired assets and the expenses and taxes inherent to the acquisition, excluding interest, which would have been paid by the purchaser.
Under the conditions established by regulation, this value will be reduced by the amount of the amortizations.
Transfer value (art. 35.3 Law)
The transfer value will be the actual amount for which the sale would have been made.
The actual amount of the sale value will be taken as the amount actually paid, provided that it is not less than the normal market value, in which case the latter will prevail.
From this value, the expenses and taxes inherent to the transfer will be deducted as soon as they are paid by the transferor.
When the transfer has been for profit, the real amount will be taken as the result of the application of the rules of the Tax on Inheritances and Donations.
Amortizations (art. 40 Rgl.)
The acquisition value of the transferred assets will be reduced by the amount of tax-deductible amortization, computing in all cases the minimum amortization, regardless of whether it is actually considered an expense.
For these purposes, the minimum amortization will be considered as the result of the maximum amortization period or the corresponding fixed percentage, depending on each case.
Amortization may only be reduced when it concerns the transfer of assets for which it could have been computed as a deductible expense, that is, fundamentally in the following cases:
-
Transfer of real estate that is or has been leased (and, where applicable, with the furniture delivered together with it).
-
Transfer of assets that are or have been affected by an economic activity carried out by the taxpayer
-
Transfer of movable property, businesses or mines that are or have been leased.
Amortization should not be computed in the case of non-leased real estate, or other assets other than those indicated above, in which no amount has been tax deductible as amortization.