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Practical Income Manual 2021.

Patrimonial losses that are not computed for tax purposes as such

Regulations: Art. 33.5 Law Personal Income Tax

The following will not be computed as capital losses:

A. Those not justified.

B. Those due to lucrative transfers through “inter vivos” acts or liberalities.

These capital losses derived from lucrative inter vivos transfers are not computed for tax purposes either for the total amount of the acquisition value, or for the difference between the acquisition value and the transfer value. Resolution of the TEAC of May 31, 2021, Claim number 00/03746/2020, relapsed into an extraordinary appeal for the unification of criteria.

C. Those due to consumption.

Thus, in the case of perishable goods or, when it comes to durable consumer goods, losses in value resulting from Personal Income Tax their normal use will not be computed because they are due to consumption. For example, if a vehicle is purchased for 15,000 euros and is sold, after five years, for 4,800 euros, coinciding with its market value, no capital loss has actually occurred for tax purposes, since the difference in value is due to the depreciation due to the use of said vehicle.

D. Those due to gambling losses obtained in the tax period that exceed the gambling profits obtained in the same period.

The calculation of the profits and losses obtained in the game is carried out globally (those obtained by the taxpayer in the tax period), taking the profits and losses of the different games.

In no case will losses derived from participation in the games referred to in the thirty-third Additional Provision of the Personal Income Tax Law be computed, which are the following:

  1. The prizes of the lotteries and bets organized by the State Lottery and Betting Society of the State and by the bodies or entities of the Autonomous Communities, as well as the draws organized by the Spanish Red Cross and the types of games authorized to the National Organization of the Spanish Blind.

  2. Prizes from lotteries, bets and raffles organized by public bodies or entities that carry out non-profit social or welfare activities established in other Member States of the European Union or the European Economic Area and that pursue objectives identical to those of the organizations or entities indicated in the previous letter.

Likewise, it must be taken into account that prizes derived from programs developed in the media in which no type of financial outlay is made to participate in them, and prizes derived from random combinations for advertising or promotional purposes may not be reduced in the amount of losses obtained in the game.

Note: For the purposes of the provisions of article 33.5 d) of the Personal Income Tax Law , the definition of gambling referred to in article 3.a) of Law 13/2011 will be considered applicable. of May 27, regulating gambling, according to which gambling is understood as any activity in which amounts of money or objects economically evaluable in any way are risked on future and uncertain results, dependent to some extent on chance, and that allow their transfer between the participants, regardless of whether the degree of skill of the players predominates or whether they are exclusively or fundamentally due to luck, bet or chance. Prizes may be in cash or in kind depending on the type of game.

E. Those derived from transfers with repurchase of the transferred asset.

They cannot be included for liquidation purposes as capital losses in the same year in which those derived from the transfer of assets are generated, when the same assets transferred are reacquired within a specified period or, in the event that the assets transferred were securities or participations, when homogeneous securities or participations are acquired.

They have this consideration, those that come from the same issuer and are part of the same financial operation or respond to a unity of purpose, including the systematic obtaining of financing, that have the same nature and transmission regime and attribute to their holders a substantially similar rights and obligations.

However, the homogeneity of a set of values will not be affected by the possible existence of differences between them in relation to their unit amount; dates of putting into circulation, material delivery or pricing; placement procedures, including the existence of tranches or blocks intended for specific categories of investors; or any other aspects of an accessory nature. In particular, homogeneity will not be altered by the division of the issue into successive tranches or by the provision of extensions.

The application of this precautionary rule is conditional on the repurchase being carried out within the following terms :

  1. Two months before or after the transfers, in the case of securities or shares admitted to trading on one of the official secondary securities markets defined in Directive 2004/39/EC of the European Parliament and the Council, of April 21, 2004 regarding financial instrument markets.

    Please note that Directive 2004/39/EC has been repealed with effect from 3 January 2017 by Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on instrument markets. financial. This, in its article 94, provides that references to Directive 2004/39/EC will be understood as references to Directive 2014/65/EU.

  2. One year before or after the transfers , in the case of securities or shares not admitted to trading in any of the aforementioned official secondary securities markets.

  3. One year after the transmission , in the case of other assets. It should be noted that in any case the same transferred asset element must be acquired.

The capital loss obtained, which must be declared and quantified in the declaration of the year in which it was generated , will be integrated for liquidation purposes when the acquired asset element is transferred or, in the case of securities or participations, as the values or participations that remain in the taxpayer's assets are transmitted.