Capital gains and losses obtained in the year
Regulations: Art. 11.5 Law Personal Income Tax
To determine to whom the capital gains and losses accrued in the year should be attributed, the Tax Law establishes a general rule and a special rule.
When the ownership of the assets or rights is proven
Capital gains and losses are considered obtained by the person who owns the assets, rights and other assets from which they come, and said person must declare them.
In cases where the ownership of the assets or rights corresponds to several people, the income will be considered obtained by each of them in proportion to their participation in said ownership.
In the case of marriage, and in accordance with this general rule, the capital gains and losses derived from assets and rights that, in accordance with the provisions or regulatory agreements of the corresponding matrimonial property regime, are common to both spouses, will be attributed in half to each of them, unless they justify another participation fee.
On the contrary, capital gains or losses derived from private assets or rights correspond to the spouse who owns them.
When the ownership of goods or rights is not duly accredited
When the ownership of assets or rights is not duly accredited, the Tax Administration will have the right to consider as the owner whoever appears as such in a tax or other public registry, to whom the capital gains or losses derived from said assets will be attributed. or rights.
Unjustified profits will be attributed based on the ownership of the assets or rights in which they are manifested.
This consideration includes assets or rights whose possession, declaration or acquisition does not correspond to the income or assets declared by the taxpayer, as well as the inclusion of non-existent debts in any declaration for this Personal Income Tax or by the Wealth Tax, or its registration in official books or records. For these purposes, unjustified profits will be integrated by the Tax Administration into the general taxable base of the tax period in respect of which they are discovered, unless the taxpayer sufficiently proves that he has been the owner of the corresponding assets or rights from a date prior to the of the prescription period. (Art. 39 Law Personal Income Tax ).
Note: Please note that article 39 of the Personal Income Tax Law has been modified by the fifth Final Provision of Law 5/2022, of March 9, which modifies Law 27/2014, of November 27, on Tax on Companies, and the consolidated text of the Non-Resident Income Tax Law, approved by Royal Legislative Decree 5/2004, of March 5, in relation to hybrid asymmetries, as a consequence of the Judgment (CJEU) of 27 of January 2022 (case C-788/19) which required adapting certain aspects of the legal regime associated with the obligation to declare assets and rights abroad to European legality (model 720).
Note: Capital gains or losses derived from elements affected by the development of economic activities will be attributed according to the rules previously discussed, so that, in the case of marital assets affected, the capital gain or loss obtained will be attributed in half to both spouses.
Pursuant to the special rule, capital gains that consist of acquisitions of goods and rights that do not derive from a prior transfer, such as winnings in gambling and similar cases, are attributed to the person to whom the right to obtain them corresponds or who has won them directly.
In the case of capital gains caused by a subsidy, they will be attributed only to the taxpayer to whom the subsidy was granted, regardless of the use given to it.
See in this regard the resolution of TEAC of June 1, 2020, Claim number 00/00670/2019 , relapse in extraordinary appeal for unification of criteria.