12. Transfer or extinction of real rights of enjoyment over real estate
Regulations: Art. 37.1.k) Law Personal Income Tax
Specific valuation standards
As a general rule, the capital gain or loss is calculated by the difference between the transfer value (which is zero in the case of extinction of the right) and the acquisition value.
If the holder of the real right of enjoyment over real estate leased the same, the amortization of the usufruct could be deducted as an expense in determining the corresponding real estate capital returns (with the limit of the full returns received from the lease). Therefore, upon transfer or extinction of the right, the acquisition value must be reduced by the amount of amortization that could be deducted for tax purposes.
In the case of real rights of enjoyment or enjoyment constituted over real estate that do not generate income from the real estate capital, the right is consumed by use, so the acquisition value must be reduced proportionally to the time of use.
Real rights of enjoyment or enjoyment over real estate acquired before December 31, 1994
In this case, if a capital gain is obtained, the part of the capital gain that was generated prior to January 20, 2006 (the only one to which the reduction or reduction coefficients are applicable) must be distinguished from that generated later. to that date on which the reduction or abatement coefficients are not applicable.
The determination of the capital gain generated prior to January 20, 2006 and the application, where applicable, of the reducing coefficients will be carried out in accordance with the distribution rules discussed herein Chapter.
Example: Transfer or extinction of real rights of enjoyment over real estate
On January 2, 2002, Mr. AMC acquired a temporary usufruct for a period of 20 years over an urban property, disbursing an amount equivalent to 60,000 euros. Said urban property was leased during the years 2002 to 2006, with the right holder charging an annual rent for an amount equivalent to 3,000 euros during 2002 and 4,200 euros during each of the remaining years.
On January 2, 2021, said right is transferred for an amount of 34,000 euros.
Determine the amount of the capital gain or loss obtained in the transfer of the aforementioned real right.
Transfer value: 34,000
Acquisition value: 6,000 (1)
Capital gain (34,000 - 6,000) = 28,000
Notes to the example:
(1) For the years 2007 to 2020 in which the property was not leased, the acquisition value of the real right will be reduced in the proportion that said periods represent with respect to the duration of the right. The following operations must therefore be carried out:
Acquisition amount: 60,000
Minority corresponding to the years 2007 to 2020 (60,000 ÷ 20) x 14 = 42,000
Reduced acquisition amount (60,000 – 42,000) = 18,000
Fewer tax deductible amortizations: (2)
Total amortization value 2002 to 2006 (3) (3,000 x 5) = 15,000
Total acquisition value (18,000 – 15,000) = 3,000 (Back)
(2) As this is a temporary usufruct, the deductible annual amortization will be the result of dividing the acquisition cost of the satisfied right by the number of years of its duration, without this amount exceeding the amount of the full income derived from the right. That is, 60,000 ÷ 20 = 3,000 euros. (Back)
(3) The tax deductible amortization limit cannot exceed the amount of income received in each of the years. (Back)