Allocation of capital gains and losses produced in 2021
Regulations: Art. 14. 1. c) Law Personal Income Tax
The declaration and determination of the amount of capital gains and losses must be made and attributed to the tax period in which the capital alteration takes place.
Regulations: Art. 14.2.c), d), g), i), j) and k) Law Personal Income Tax
A. Transactions in installments or with deferred price
In these cases, the taxpayer may choose to proportionally allocate the capital gains or losses produced, as the corresponding charges become payable.
Installment transactions or transactions with a deferred price will be considered those whose price is received, in whole or in part, through successive payments, provided that the period elapsed between the delivery of the good or the making available of the good or right and the expiration of the last installment is longer. year.
When the payment of an operation in installments or with a deferred price had been implemented, in whole or in part, through the issuance of exchange bills and these were transmitted firmly before their maturity, the income will be attributed to the tax period of its transmission.
Note: The exercise of the option for the temporary imputation of the application of the deferred collections criterion will be carried out, element by element, in the section "Equity gains and losses with deferred price pending imputation in future years" of Annex C.1 of the statement.
In no case will operations derived from life or temporary annuity contracts have this treatment for the transferor. When assets and rights are transferred in exchange for a life or temporary annuity, the capital gain or loss for the annuitant will be attributed to the tax period in which the income is created.
B. Public aid
In general: Capital gains derived from public aid will be allocated to the tax period in which their collection takes place , without prejudice to the options which are collected below:
Public aid received as compensation for structural defects of the habitual residence . When said aid is intended for the repair of the habitual residence, it may be allocated in quarters , in the tax period in which it is obtained and in the following three.
Precision: This criterion is introduced, with effect from January 1, 2015, by Law 26/2014, of November 27, which modifies Law 35/2006, of November 28, on Personal Income Tax ( BOE of 28). Previously, the administrative criterion in these cases established the imputation at the moment in which the grantor communicated the concession to the applicant, regardless of the moment of payment. However, if in accordance with the requirements of the concession, payment of the subsidy became payable after the year of its communication, the profit generated by the subsidy must be allocated to the tax period in which the corresponding amount was payable.
Direct state aid when entering housing . The aid included in the scope of the state plans for access, for the first time, to home ownership, received by taxpayers, as of January 1, 2002, through a single payment in the form of Direct State Aid at Entry ( AEDE), may be allocated in quarters in the tax period in which they are obtained and in the following three.
Public aid to owners of Spanish Historical Heritage assets registered in the General Registry of Assets of Cultural Interest . This aid, intended exclusively for its conservation or rehabilitation, may be allocated in quarters in the tax period in which it is obtained and in the following three, provided that the requirements established in the Law are met. 16/1985 of June 25, of the Spanish Historical Heritage, in particular with respect to the duties of visiting and public exhibition of said assets.
Since January 1, 2020, public aid for the first installation of young farmers provided for in the National Rural Development Framework of Spain is allocated to the acquisition of a participation in the capital of corporate agricultural companies. These may be allocated in quarters , in the tax period in which they are obtained and in the following three.
Note: also from January 1, 2020 the public aid for the first installation of young farmers provided for in the National Rural Development Framework of Spain that is not intended for the acquisition of a participation in the capital of corporate agricultural enterprises, may be allocated as income from economic activities in quarters, in the tax period in which they are obtained and in the following three.
C. Overdue and uncollected credits
Capital losses derived from overdue and uncollected credits may be attributed to the tax period in which any of the following circumstances occur:
That a haircut established in a judicially comparable refinancing agreement becomes effective referred to in article 71 bis and the fourth Additional Provision of Law 22/2003, of July 9, Bankruptcy and, as of September 1, 2020, Title II of the second book (articles 596 to 630) of Royal Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law or in a extrajudicial payment agreement to which Title 2020, Title III of the second book (articles 631 to 694) of Royal Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law.
You can consult, for purely informative purposes, the table of correspondence of the precepts of Law 22/2003, of July 9, Bankruptcy, with those of the consolidated text of the Bankruptcy Law, approved by Royal Legislative Decree 1/2020, of 5 May, by virtue of the third Additional Provision of the same, through the website of the Ministries of Justice and of Economic Affairs and Digital Transformation .
Article 71 bis of Law 22/2003 considers certain refinancing agreements non-cancelable when they meet established conditions. For its part, the fourth Additional Provision of Law 22/2003, of July 9, Bankruptcy, regulates the judicial approval of refinancing agreements. Since September 1, 2020, see Royal Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law.
That, if the debtor is in a bankruptcy situation, the agreement in which a reduction in the amount of the credit is agreed upon becomes effective in accordance with the provisions of article 133 of Law 22/2003, of July 9, Bankruptcy, in which In this case, the loss will be computed by the amount of the reduction.
As of September 1, 2020, articles 393, 394 and 395 of Royal Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law, must be taken into account.
In another case, if the write-off is not agreed, the loss may be attributed when the bankruptcy procedure concludes without the credit having been satisfied unless the conclusion of the bankruptcy is agreed for the following reasons referred to in sections 1. 4th and 5th of article 176 of Law 22/2003, of July 9, Bankruptcy and, since September 1, 2020, sections 1, 6 and 7 of article 465 of Royal Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law. The aforementioned reasons for the conclusion of the contest are:
Once the order of the Provincial Court that revokes the order declaring bankruptcy on appeal is signed.
At any stage of the procedure, when the payment or consignment of all recognized credits or the full satisfaction of creditors by any other means is verified or that the situation of insolvency no longer exists.
Once the common phase of the bankruptcy process is over, when the resolution that accepts the withdrawal or resignation of all recognized creditors is final.
That the period of one year expires from the beginning of the judicial procedure other than bankruptcy proceedings that has as its objective the execution of the credit without it having been satisfied.
When the credit was collected after the calculation of the capital loss, a capital gain will be allocated for the amount collected in the tax period in which said collection occurs.
D. Income pending imputation
Regulations: Articles 14.3 and 4 Personal Income Tax Law and 63 Regulations
Loss of taxpayer status due to change of residence
In the event that the taxpayer loses his status due to a change of residence, all income pending imputation must be integrated into the tax base corresponding to the last tax period that must be declared by the IRPF, carrying out, where appropriate, complementary self-assessment, without penalty. No late payment interest or any surcharge.
However, if the transfer of residence occurs to another Member State of the European Union , the taxpayer is given the option of applying the previous rule or of presenting, as they leave obtaining each of the income pending imputation, a complementary self-assessment without penalty, late payment interest or any surcharge, corresponding to the last period that must be declared for this Tax. The self-assessment will be submitted within the declaration period of the tax period in which said income would have been allocated if the loss of taxpayer status had not occurred.
Likewise, take into account the special regime for capital gains due to change of residence of article 95 bis of the Personal Income Tax Law which is discussed in section " Special regime: Capital gains due to change of residence " of this Chapter.
Death of the taxpayer
In the event of the taxpayer's death, all income pending imputation must be included in the tax base of the last tax period that must be declared.