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Practical manual for Income Tax 2021.

Not derived from transfers of assets

Regulations: Art. 34.1.b) Law Income Tax

In other cases other than onerous or lucrative transfer, the amount of the capital gain or loss will be the market value of the assets or proportional parts , where applicable.

This category of capital gains should include the incorporation of assets or rights into the taxpayer's assets that do not derive from a prior transfer, such as, for example, the receipt of certain subsidies or aid for the acquisition or rehabilitation of the habitual residence, state aid in the form of a basic income for emancipation, aid derived from the forestry use of public forests by residents, interest of a compensatory nature arising from the delay in the fulfillment of an obligation, including the payment of salaries, as well as prizes obtained by participation in games, contests, raffles or random combinations.

Specific assumptions:

In the case of grants the amount of said gain will be the monetary amount of the grant.

In relation to the prizes, it is worth distinguishing:

  • Cash Prizes . These prizes are subject to withholding, so the amount computable as capital gain will consist of the entire prize without deducting the withholding incurred, which will be declared as such in the section of the declaration corresponding to withholdings and other payments on account.

  • Prizes in kind. These prizes are subject to advance payment, so the total computable amount will be composed of the sum of the valuation of the prize received, which will be carried out at its market value, plus the advance payment, unless the latter has been passed on to the taxpayer.

In the case of legal costs two situations must be distinguished:

  1. Taxpayer obligated—by court ruling—to pay the legal defense costs incurred by the winning party in the process.

    This is a capital loss that will be imputed in the tax period in which the conviction became final, since it is in said tax period when the change in assets that gives rise to it takes place. It is integrated into the general tax base in the manner and with the limits established in article 48 of the IRPF law.

  2. Taxpayer who, as the winner of a legal proceeding, receives a certain amount for the condemnation of legal costs to the opposing party.

    In this case, in order to determine the capital gain that the opposing party may incur from being ordered to pay legal costs, the winning litigant may deduct from the amount received in the form of costs the expenses incurred in connection with the lawsuit, a deductible amount that may reach a maximum of the amount received, without exceeding it. Therefore, if the amount of the award of costs corresponds to the expenses incurred - which can be classified as costs - there will not have been a capital gain for the consultant with respect to the costs. See Resolution of the TEAC of June 1, 2020, Claim number 00/06582/2019 , issued in an appeal for the unification of criteria.

Note: the return, in cash or through other compensation measures, of amounts previously paid to financial institutions as interest for the application of interest rate limitation clauses on loans ( -called floor clause), together with their corresponding compensatory interest, arising from both agreements entered into with financial institutions and compliance with judgments or arbitration awards, will not be included in the tax base of ##1## IRPF ##1##.