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Practical manual for Income Tax 2021.

1. Existence of an alteration in the composition of the taxpayer's assets

As an example, the following constitute alterations in the composition of the assets of the taxpayer:

  • Onerous or lucrative transfers of assets or rights. Examples of the former include sales of homes, commercial premises, parking spaces, rural properties, shares, etc. and, among the latter, inheritances, legacies and donations.

  • The incorporation into the taxpayer's assets of money, assets or rights that do not derive from a prior transfer. This is the case, among others, of obtaining prizes of any kind, whether cash or in kind, subsidies, etc.

  • The exchange of goods or rights.

  • Duly justified losses in assets.

On the contrary, the Law considers that there is no alteration in the composition of the assets and, therefore, there will be no capital gain or loss in the following operations, provided that the award corresponds to the respective ownership share:

  1. Division of the common thing.

  2. Dissolution of the community property or termination of the matrimonial economic regime of participation.

  3. Dissolution of community property or separation of commoners.

    Excess allocation in the dissolution of property communities or separation of co-owners

    In order for the exercise of the action of division of the common thing or the dissolution of the community of property not to imply an alteration in the composition of the estate, it is necessary that the awards that are carried out when the joint ownership is dissolved or when the condominium is extinguished correspond to the share of ownership, since, in the event that one of the co-owners or commoners is awarded assets or rights for a value greater than that corresponding to their share of ownership, there will be an alteration in the assets of the other co-owner or co-owners, which may generate, where appropriate and depending on the variations in value that the property may have experienced, a capital gain or loss regardless of whether or not there is compensation in cash, the amount of which will be determined, in accordance with the provisions of article 34 of the Personal Income Tax Law, by the difference between the acquisition and transfer values, values that are defined in articles 35 and 36 of the Personal Income Tax Law, for onerous transfers. and lucrative, respectively, which are developed in section “ Determination of the amount of capital gains or losses: general rules ” of this Chapter.

    In these three cases (division of common property, dissolution of the community property or termination of the matrimonial economic regime of participation and dissolution of community property or separation of co-owners) the values of the assets or rights received cannot be updated, so they will retain their original values and dates of acquisition.

  4. Likewise, in accordance with the provisions of the Eighteenth Additional Provision of Law 62/2003, of December 30, on fiscal, administrative and social order measures ( BOE of 31), it will be estimated that there is no alteration in the composition of the assets in the delivery of the securities on loan or in the return of other homogeneous securities at the maturity of the loan in the terms and with the requirements established in the aforementioned Additional Provision.

    Please note that Law 27/2014, of November 27, on Corporate Tax ( BOE of the 28th), has repealed, with regard only to said tax, with effect from January 1, 2015, section 2 of the Eighteenth Additional Provision of Law 62/2003, of December 30, which establishes the tax regime applicable to securities lending operations. Therefore, the tax treatment provided for in the aforementioned Eighteenth Additional Provision of Law 62/2003 when the lender or borrower is a taxpayer for the IRPF remains in force.

Note: regarding the excesses of allocation in the dissolution of property communities or separation of commoners the Resolution of the Central Economic-Administrative Court (TEAC) of June 7, 2018, Claim number 00/02488/2017, must be taken into account, issued in an extraordinary appeal for unification of criteria, whose criteria are included in the summary table which can be accessed at the end of chapter .