General calculation rules

Regulations: Articles 34 to 36 Law Personal Income Tax and 40 Regulations

Note: Take into account the summary tables of the general rules that appear at the end of this section.

The determination of the amount of capital gains or losses arising from the transfer, onerous or lucrative, of unaffected assets is determined by the difference between the transfer values and acquisition of heritage elements.

Precision: To determine the amount of the capital gain or loss that arises from the transmission of assets affected , see the specific valuation rules section of this Chapter.

A. Acquisition value

The acquisition value will be formed by the sum of:

1. In the case of transfers for consideration: for the actual amount for which said acquisition would have been made.

   However, for the purposes of determining the acquisition value in the event that a subsequent verification of values occurs in the Tax on Property Transfers and Legal Acts Documented by the respective Autonomous Communities, this verified value must be taken into account as the amount real to which article 35 of the Personal Income Tax Law refers. Supreme Court ruling of December 21, 2015, appeal for cassation for the unification of doctrine no.  2068/2014. (RED: STS 5470/2015)

   In the case of transfers for profit or free of charge (inheritance, legacy or donation): by the declared or the administratively verified for the purposes of the Inheritance and Donation Tax, without this being able to exceed the market value. 

   However, as of July 11, 2021, in the case of lucrative acquisitions due to death derived from contracts or succession agreements with the effects of this , the beneficiary of the same who transmits before After the passage of five years from the execution of the succession agreement or the death of the deceased, if earlier, the acquired assets will be subrogated to the latter's position, with respect to the value and date of acquisition of those, when this value is lower than expected. in the previous paragraph.

   Law 11/2021, of July 9, on measures to prevent and combat tax fraud, transposing Council Directive ( EU ) 2016/1164, of 12 July 2016, which establishes rules against tax avoidance practices that directly affect the functioning of the internal market, modifying various tax rules and the regulation of gambling, has added a new paragraph to article 36 of the Personal Income Tax Law to subject to taxation those cases in which, in the five years following the conclusion of the succession agreement or the death of the deceased (if earlier), the assets are transferred by the beneficiary of the succession agreement. In that case, the successor loses the value update carried out through the ISD and is subrogated on the date and value of acquisition of the original owner.

   It must be taken into account that the institution of “succession agreements” (contractual succession) is prohibited in the field of common law (articles 1,271, 658.1 and 816 of the state Civil Code), but is maintained in civil, provincial or special rights, of certain Autonomous Communities where the validity of the Civil Code is not complete (Aragon, Balearic Islands, Catalonia, Galicia, Navarra and the Basque Country).

   Important: What is established for succession agreements will only apply to the transfers of assets carried out after July 11, 2021 that have been acquired lucratively due to death under contracts or succession agreements with present effects.

   See in this regard the first transitional provision.4 of Law 11/2021, of July 9, on measures to prevent and combat tax fraud, transposition of Council Directive ( EU ) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market , modifying various tax rules and regulations on gambling ( BOE of 10)

   In the lucrative transfers of companies or shares referred to in article 20.6 of Law 29/1987, of December 18, on the Inheritance and Donation Tax ( BOE of 19), the acquisition value will coincide with the original value of the donor since the donee is subrogated to the former's position regarding the values and dates of acquisition of said goods.

2. The cost of the investments and improvements made to the acquired assets, without counting, for these purposes, the costs of conservation and repair.

   For these purposes, the compensation that the owner pays to his tenant to vacate the property is considered an improvement.

3. The expenses (commissions, notary public, Registry, etc.) and taxes inherent to the acquisition (Property Transfers and Documented Legal Acts, VAT or Inheritance or Donation Tax if the acquisition was made free of charge), excluding interest that would have been paid by the acquirer.

4. From the sum corresponding to the previous amounts , the amount of the tax-deductible amortizations will be subtracted, calculating in any case the minimum amortization, regardless of its effective consideration as an expense.

   The minimum amortization is the result of the maximum amortization period or the corresponding fixed percentage, depending on each case.

   For leased properties, the amount of the minimum amortization is determined by applying 1.5 percent until December 31, 1998; 2 percent until December 31, 2002, and 3 percent from January 1, 2003.

   In relation to the calculation of amortizations, it must be taken into account that:

   • It is not appropriate to compute amortization for those assets that are not susceptible to depreciation, such as, for example, land, securities, etc.

   • "Fiscally deductible" amortizations correspond to real estate or furniture used for economic activities, to real estate or furniture leased or subleased, to real rights of use and enjoyment of real estate, to cases of provision of technical assistance that does not constitute an economic activity. and to the leasing of businesses or mines or subleases. In these cases, the minimum amortization will be computed, regardless of its effective consideration as an expense.

   • In the case of the transfer of assets used for economic activities, the acquisition value is considered to be the book value, taking into account the amortization that would have been tax deductible, without prejudice to the minimum amortization a which we have referred to before .

   • In the case of real estate that has been leased, the amortizations will be considered to meet the effectiveness requirement when, in each year, they do not exceed the result of applying the percentage of 3 percent to the highest of the following values: Satisfied acquisition cost or the cadastral value, excluding the value of the land. When the value of the land is not known, it will be calculated by prorating the acquisition cost paid between the cadastral values of the land and the construction for each year.

     In the case of real estate acquired for profit, it must be taken into account that the paid acquisition cost includes the value of the property acquired in application of the rules on Inheritance or Donation Tax or its value verified in these liens (not including the value of the land). Interpretative criterion established by the Supreme Court (Litigation-Administrative Chamber) in its Sentence no. 1130/2021, of September 15, relapsed in cassation appeal no. 5664/2019 (RED: STS 3483/2021).

     Also included in the acquisition cost are the amount of taxes and expenses inherent to the acquisition and, where applicable, all of the investments and improvements made.

B. Transmission value

The transmission value will be made up of:

1. The actual amount for which the transfer would have been carried out or the declared value or, where applicable, the administratively verified value for the purposes of the Inheritance and Donation Tax when the transfer had been carried out for profit or free of charge, without this being able to exceed the market value.

   The amount actually paid will be taken as the actual amount of the sale value, provided that it is not lower than the normal market value, in which case the latter will prevail.

2. Expenses and taxes inherent to the transfer may be deducted from the above amount, excluding interest, as soon as they have been paid by the transferor.

C. Special case: transfer of assets in which improvements have been made in a year other than that of their acquisition

In the case of assets on which improvements have been made in a year other than that of their acquisition, it will be necessary to distinguish the part of the transfer value that corresponds to the asset and the improvement or improvements made, in order to determine, separately and independently, both the capital gains or losses derived from one or the other, as well as the reduction that, if applicable, is applicable. For these purposes, the values and dates of acquisition will be taken as those that correspond, respectively, to the asset element and each of the improvements made.

Consequently, the capital gains or losses thus determined may have different generation periods, resulting in different reduction percentages that, where appropriate, should be applied to the capital gains depending on the age they had at December 31, 1996, the asset element itself and each of the improvements made, taking into account that if improvements have been made in the transferred asset elements, the number of years between the date on which they remain in the taxpayer's assets will be taken as the period of permanence of these in the taxpayer's assets. had been carried out and on December 31, 1996, rounded up.

Summary diagrams

The components of the respective acquisition and transfer values of the different assets not affected by economic activities, depending on whether the transfer is onerous or lucrative, are those indicated in the following tables:

a) Scheme - summary: onerous transmission

Regulations: Article 35 of the Personal Income Tax Law

b) Scheme - summary: lucrative streaming

Regulations: Article 36 of the Personal Income Tax Law