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Form 100. Personal Income Tax Return 2021

Assumptions that are not computed as capital losses

The following will not be counted as capital losses:

  1. Those that are not justified.

  2. Those due to consumption.

  3. Those due to lucrative transmissions by "inter vivos" acts or to liberalities.

  4. Those due to gambling losses made in the tax period in excess of gambling winnings made in the same period.

    In no case will losses arising from participation in the games referred to in the Thirty-Third Additional Provision of the Personal Income Tax Law, which are the following, be computed:

    • Prizes from lotteries and bets organised by the State Lottery and Betting Society and by the bodies or entities of the Autonomous Communities, as well as from draws organised by the Spanish Red Cross and from the types of games authorised by the Spanish National Organisation for the Blind.
    • Prizes from lotteries, bets and draws organised by public bodies or entities that carry out non-profit social or assistance activities established in other Member States of the European Union or the European Economic Area and that pursue objectives identical to those of the bodies or entities indicated in the previous section.

  5. Those derived from transmissions with repurchase of the transferred asset: The following capital losses will not be included for liquidation purposes in the same year in which they are generated; however, the loss must be declared and quantified in the declaration for the year in which it was generated.

    1. Transfer of assets subsequently reacquired

      Losses arising from the transfer of assets will not be counted as capital losses when the transferor reacquires them within one year of the date of said transfer. This capital loss will be integrated when the subsequent transfer of the asset occurs.

    2. Transfer of securities or shares and reacquisition of homogeneous securities

      Losses arising from the transfer of securities or shares will not be counted as capital losses when the taxpayer has acquired homogeneous securities within the following periods:

      • If they are securities or shares admitted to trading on any of the official secondary securities markets defined in Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, ( currently Directive 2014/65/EU) such as shares listed on the stock exchange, investment funds that comply with the daily reporting obligations established in the regulations that regulate IIC) when the taxpayer has acquired homogeneous securities within the two months before or after said transmissions.

      • If they are securities or shares not admitted to trading on any of the official secondary securities markets defined in Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, (currently Directive 2014/65/EU) such as SICAV and SOCIMI shares that are traded on the MAB, as the MAB is not one of the markets contemplated in that Directive, when the taxpayer has acquired homogeneous securities in the year before or after said transmissions.

      In these cases, capital losses will be integrated as the securities or shares that remain in the taxpayer's assets are transferred.

      For the exclusive purposes of this Tax, homogeneous securities or shares from the same issuer shall be considered to be those that form part of the same financial transaction or respond to a unity of purpose, including the systematic obtaining of financing, are of the same nature and transmission regime, and attribute to their holders a substantially similar content of rights and obligations.

      However, the homogeneity of a set of securities shall not be affected by any differences between them in relation to their unit value; dates of launch, material delivery or pricing; placement procedures, including the existence of tranches or blocks intended for specific categories of investors; or any other aspects of an accessory nature. In particular, homogeneity will not be altered by the division of the issue into successive tranches or by the provision of extensions.