Capital gains and losses

Determining the amount of capital gains or losses: general rules

Capital gains or losses arising from profitable transfers

Succession agreements

Article 3 of Law 11/2021, of July 9, on measures to prevent and combat tax fraud ( BOE of 10) amended, as of July 11, 2021, article 36 of the Personal Income Tax Law to introduce that, in the case of lucrative acquisitions due to death derived from contracts or succession agreements with effect from the present , the beneficiary thereof who transmits the acquired assets before the expiration of five years from the conclusion of the succession agreement or the death of the deceased, if earlier, will be subrogated in the position of the latter, with respect to the value and date of acquisition of those, when this value is lower than that resulting from the application of the rules of the Inheritance and Gift Tax.

This amendment is complemented by a transitional regime establishing that it will only be applicable to transfers of assets made after July 11, 2021, which were acquired for profit due to death by virtue of contracts or inheritance agreements with present effects.

Therefore, the new subrogation rule included in article 36 of the Income Tax Law for the transfer of assets, by virtue of contracts or succession agreements with present effects, will not be applicable to transfers made before July 11 2021. In such cases, the acquisition value to be taken into account will be the result of the rules of the Inheritance and Gift Tax when the transfer was made, and this acquisition value will be taken as the real amount for which the acquisition was made.

Earnings excluded from tax in reinvestment cases

For the purposes of calculating the reinvestment period in the exemptions for reinvestment in habitual housing and in newly or recently created entities, the period between March 14, 2020, the date of entry into force of Royal Decree 463/2020, and May 30, 2020, will not be taken into account because it has been suspended, by virtue of the provisions of the Ninth Additional Provision of Royal Decree-Law 11/2020, of March 31, which adopts urgent complementary measures in the social and economic field to face COVID-19 (BOE of April 1) and the modification of the temporary references provided for in the First Additional Provision of Royal Decree-Law 15/2020, of April 21, on urgent complementary measures to support the economy and employment (BOE of the 22nd).