8.2.2.1. Amount of capital gains and losses

The amount of capital gains or losses will be:

1. In the case of onerous or lucrative transfer, the difference between the acquisition value and the transfer value of the assets.

2. 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:

1. 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.

   However, in the case of lucrative acquisitions due to death arising from contracts or succession agreements with present effects, the beneficiary of the same who transfers, before the passage of five years from the celebration of the succession agreement or the death of the deceased, if earlier, the acquired assets, will be subrogated in the position of the latter, with respect to the value and date of acquisition of those, when this value is lower than that provided for in the previous paragraph.

   The provisions of the preceding paragraph shall only apply to transfers of assets made after July 11, 2021, which were acquired for profit due to death by virtue of contracts or inheritance agreements with present effects.

   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).

2. The cost of investments and improvements made to the acquired assets and the expenses and taxes inherent to the acquisition, excluding interest, which have been paid by the purchaser.

The value obtained in accordance with the above will be reduced by the amount of the tax-deductible amortizations, computing in all cases the minimum amortization, regardless of its actual consideration as 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.

Transfer value (art. 35.3 Law)

The transfer value will be the actual amount for which the sale was 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.

Expenses and taxes inherent to the transfer will be deducted from this value 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.