3. Exemptions on capital gains
Donations to certain entities
Regulations: Art. 33.4 a) Law Personal Income Tax
Capital gains arising from donations made to the entities mentioned in article 68.3 of the Personal Income Tax Law are exempt.
The entities referred to in article 68.3 of the Personal Income Tax Law are those that give the right to practice the deduction for donations. Said entities benefiting from patronage are listed in Chapter 16.
Transfer of their habitual residence for people over 65 years of age or people in a situation of dependency
Regulations: Articles 33.4 b) Law Personal Income Tax and 41 bis Regulation Income Tax
Capital gains that become evident on the occasion of the transfer of their habitual residence by those over 65 years of age are exempt, as well as by people who are in a situation of severe dependency or great dependency in accordance with the Law on the Promotion of personal autonomy and care for people in a situation of dependency. The exemption also applies to the transfer of bare ownership of the habitual residence by its owner, reserving the lifetime usufruct over said residence.
For the exclusive purposes of applying this exemption, it will be understood that the taxpayer is transferring his or her habitual residence when said building constitutes his or her habitual residence at that time or had had such consideration until any day of the two years prior to the date of transfer.
The non-subjection to Personal Income Tax of the amounts received in certain cases of reverse mortgage of the habitual residence is discussed in the subsection " Income not subject to ", of this same Chapter. Regarding the concept of housing, see the twenty-third Additional Provision of the Personal Income Tax Law .
Payment of tax debts with assets that are part of the Spanish Historical Heritage
Regulations: Art. 33.4 c) Law Personal Income Tax
Capital gains that become evident during the payment of tax debts of the Personal Income Tax and the Inheritance and Donation Tax through the delivery of assets that are part of the Spanish Historical Heritage are exempt in accordance with the provided in article 73 of Law 16/1985, of June 25, on Spanish Historical Heritage.
Dation in payment for the principal residence
Regulations: Art. 33.4 d) Law Personal Income Tax
Exempt are the capital gains that become evident on the occasion of the payment of the habitual residence of the debtor or guarantor of the debtor, for the cancellation of debts guaranteed by a mortgage that falls on it, contracted with credit institutions or any other another entity that, professionally, carries out the activity of granting loans or mortgage credits.
Precision: dation in payment is not denatured or its nature mutated by the fact that it is made in favor of a third party, other than the mortgagee, provided that it is the latter who imposes such a condition to access the dación and accepts it as extinguishing the obligation.
Likewise, capital gains that become evident on the occasion of the transfer of the home in which the same requirements are met as for the dation in previous payment, carried out in judicial or notarial mortgage foreclosures are declared exempt.
In any case, the owner of the main residence must not have other goods or rights that could satisfy the total amount of the debt and prevent the alienation of the property.
Regarding the concept of habitual residence, see the twenty-third Additional Provision of the Personal Income Tax Law and article 41 bis of the Regulations.
Exemption for reinvestment in habitual residence
Regulations: Articles 38.1 Law Personal Income Tax and 41 Regulation Personal Income Tax
The capital gain obtained from the transfer of the habitual residence is exempt, provided that the reinvestment of the amount obtained occurs in the acquisition of another habitual residence or in the rehabilitation of the one that is going to have such character, under the conditions and requirements established by regulation. , in the same year in which the capital gain is obtained, in the two previous ones or in the two following ones.
The conditions and requirements for the application of this exemption for reinvestment in primary residence are discussed in Chapter 11.
Exemption for reinvestment in another newly or recently created entity
Regulations: Articles 38.2 Law Personal Income Tax and 41 Regulation Personal Income Tax
The capital gain obtained from the transfer of shares or participations for which the deduction for investment in new or recently created companies provided for in article 68.1 of this Law has been made, is exempt, provided that the total amount obtained from the transfer of the The same is reinvested in the acquisition of shares or participations of the aforementioned entities under the conditions that are determined by regulation.
The conditions and requirements for the application of this exemption for reinvestment in another newly or recently created entity are discussed in chapter 11.
Exemption for reinvestment in annuities
Regulations: Articles 38.3 Law Personal Income Tax and 42 Regulation Personal Income Tax
Capital gains that are evident in the transfer of assets by taxpayers over 65 years of age are exempt, provided that the total amount obtained from the transfer is used within a period of six months to constitute a life annuity insured in their favor. under the conditions established by regulation. The total maximum amount that can be allocated for this purpose to constitute life annuities will be 240,000 euros. It should be noted that this investment limit is per taxpayer, not per operation.
When the reinvested amount is lower than the total of the amount received in the transfer, only the proportional part of the capital gain obtained corresponding to the reinvested amount will be excluded from taxation.
The advanced receipt, total or partial, of the economic rights deriving from the constituted life annuity will determine the subjection to taxation of the corresponding capital gain.
The treatment of the income derived from the life annuity has no particularity, being taxed as income from movable capital.
The detailed commentary on this exemption for the transfer of assets by taxpayers over 65 years of age with reinvestment of the amount obtained in annuities is contained in Chapter 11.
Transfer of shares or participations in new or recently created companies acquired between July 11, 2011 and September 29, 2013
Regulations: See the thirty-fourth Additional Provision of the Personal Income Tax Law , in its wording in force as of December 31, 2012.
The capital gain that is revealed on the occasion of the transfer of shares or participations acquired by the taxpayer in new or recently created companies between July 11, 2011 and September 29, 2013 is exempt, provided that they have remained in its assets for a period of more than three years (counted from date to date) from its acquisition, and the requirements and conditions established in the thirty-fourth Additional Provision of the Personal Income Tax Law are met. its wording in force as of December 31, 2012.
Exceptional aid for personal injuries caused by natural disasters
The aid granted in cases of death and disability caused directly by the storm “Filomena” is exempt, in accordance with the provisions of Royal Decree-Law 10/2021, of May 18 ( BOE of May 19), as well as the aid granted for personal injuries caused directly by the volcanic eruptions on the island of La Palma in accordance with the provisions of Royal Decree-Law 20/2021, of October 5, by the that urgent support measures are adopted to repair the damage caused by the volcanic eruptions and for the economic and social reconstruction of the island of La Palma ( BOE of October 6).
Also exempt, under identical terms, are, among others, exceptional aid for personal injuries suffered by people affected by:
The seismic movements that occurred on May 11, 2011 in the municipality of Lorca (Murcia), in accordance with the provisions of article 2 of Royal Decree-Law 6/2011, of May 13 ( BOE of May 14. Correction of errors of May 18 and 19), modified by Royal Decree-Law 17/2011, of October 31 ( BOE of November 1).
Forest fires and other natural disasters to which Law 14/2012, of December 26, applies ( BOE of December 27). See also Royal Decrees 1505/2012, of November 2 ( BOE of November 3) and 389/2013, of May 31 ( BOE of June 15), which expands the scope of application of Law 14/2012.
Wind and sea storms on the Atlantic coast and the Cantabrian coast in January and February 2014, in accordance with the provisions of articles 2 and 10 of Royal Decree-Law 2/2014, of February 21, ( BOE of February 22).
Floods and other effects of rain, snow and wind storms that occurred in the months of January, February and March 2015, in accordance with the provisions of articles 2 and 10 of Royal Decree-Law 2/2015, of March 6 ( BOE of March 7) or the rain storms in the Autonomous Community of the Canary Islands and in the south and east of the peninsula in the months of September and October 2015 in accordance with articles 2 and 10 of Royal Decree-Law 12/2015, of October 30 ( BOE of October 31).
The storms of rain, wind, snowfall, hail and coastal phenomena that occurred in the months of November and December 2016 and in 2017 to which Royal Decree-Law 2/2017, of January 27, by which adopt urgent measures to alleviate the damage caused by the latest storms ( BOE of January 28). See also Royal Decrees 265/2017, of March 17 and 1387/2018, of November 19 ( BOE of November 20), which expands the scope of application of the Royal Decree-Law 2/2017.
Storms of torrential rain, snow, hail and wind, floods, overflowing rivers and torrents, hail, coastal phenomena and tornadoes, as well as forest fires or other catastrophic events that occurred from January 2018 to September 20 and others. situations to which Royal Decree-Law 2/2019, of January 25, which adopts urgent measures to alleviate damage caused by storms and other catastrophic situations (BOE of January 26) and the Royal Decree, apply. -Law 11/2019, of September 20, which adopts urgent measures to alleviate damage caused by storms and other catastrophic situations ( BOE of September 21).
With effect from December 28, 2022, the aid provided for in Law 17/2015, of July 9, of the National Civil Protection System, for personal injuries caused is exempt from Personal Income Tax due to the forest fires that took place during the months of June, July and August in the Autonomous Communities that are declared areas seriously affected by civil protection emergencies (Andalusia, Aragon, Balearic Islands, Canary Islands, Castilla y León, Castilla-La Mancha, Catalonia , Valencian Community, Extremadura, Galicia, Madrid, Region of Murcia, Navarra, Basque Country and La Rioja), in the annex to the Agreement of the Council of Ministers August 23, 2022, all in accordance with the provisions of section 7 of the article 94 of Royal Decree-Law 20/2022, of December 27, on measures to respond to the economic and social consequences of the War in Ukraine and to support the reconstruction of the island of La Palma and other situations of vulnerability ( BOE of December 28).
Exceptional aid for damage to heritage elements caused by natural disasters
Regulations: Additional Provision fifth.1 section c) Law Personal Income Tax
Public aid intended to repair the destruction, due to fire, flood, subsidence, volcanic eruption or other natural causes, of heritage elements will not be included in the personal income tax tax base.
In this regard, take into account the aid intended to alleviate personal injuries, housing, industrial, commercial and service establishments, to local corporations, and to natural or legal persons, provided for in Royal Decree-Law 20/2021, of October 5 , by which urgent support measures are adopted for the repair of damage caused by volcanic eruptions and for the economic and social reconstruction of the island of La Palma ( BOE of October 6 ).
Aid to offset costs in buildings affected by the release of the first digital dividend
Regulations: Additional Provision 5.4 Law Personal Income Tax
The aid granted under the provisions of Royal Decree , of October 31 which regulates the direct granting of subsidies intended to offset the costs derived from the reception or access to television audiovisual communication services in the buildings affected by the release of the digital dividend (first digital dividend).
Attention: Unlike the previous one, the aid to compensate for the costs derived from the reception or access to television audiovisual communication services in the buildings affected by the release of the second digital dividend, regulated in Royal Decree 392/2019, is subject to and not exempt. , June 21.
Subsidies and aid for energy rehabilitation actions in buildings
Regulations: Additional Provision 5.4 Personal Income Tax Law
The aid granted under the different programs established in the following Royal Decrees will not be integrated into the tax base of Personal Income Tax in the 2021 financial year and following:
Royal Decree 691/2021, of August 3, which regulates the subsidies to be granted for energy rehabilitation actions in existing buildings, in execution of the Energy Rehabilitation Program for existing buildings in municipalities with a demographic challenge (PREE 5000 Program) , included in the Regeneration and Demographic Challenge Program of the Urban Rehabilitation and Regeneration Plan of the Recovery, Transformation and Resilience Plan, as well as its direct concession to the autonomous communities;
Royal Decree 737/2020, of August 4, which regulates the aid program for energy rehabilitation actions in existing buildings and regulates the direct granting of aid from this program to the autonomous communities and cities of Ceuta and Melilla;
Royal Decree 853/2021, of October 5, which regulates the aid programs for residential rehabilitation and social housing of the Recovery, Transformation and Resilience Plan.
Transfer of urban properties acquired between May 12, 2012 and December 31, 2012
Regulations: Additional Provision thirty-seventh Law Personal Income Tax
50 per 100 of the capital gain that is evident on the occasion of the transfer of urban real estate acquired for consideration from May 12, 2012 until December 31 is exempt of 2012.
This assumption is discussed under exempt capital gains in Chapter 11.
Income obtained by the debtor in bankruptcy proceedings
Regulations: Additional Provision forty-third Law Personal Income Tax
Income obtained by debtors that is evident as a consequence of deductions and dations in payment of debts is exempt, established in:
An agreement judicially approved in accordance with the procedure established in Law 22/2003, of July 9, Bankruptcy and, since September 1, 2020, in Royal Legislative Decree 1/2020, of May 5, by which it is approved the consolidated text of the Bankruptcy Law.
A judicially approved refinancing agreement referred to in article 71 bis and the fourth Additional Provision of Law 22/2003, of July 9, Bankruptcy and, since September 1, 2020, regulated in 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.
An extrajudicial payment agreement referred to in Title Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law, or
or, finally, as a consequence of exonerations of the unsatisfied liabilities referred to in article 178 bis of Law 22/2003, of July 9, Bankruptcy and, since September 1, 2020, Chapter II of Title XI of the book first, articles 486 to 502, of Royal Legislative Decree 1/2020, of May 5, which approves the consolidated text of the Bankruptcy Law.
In all cases, it is a necessary requirement for income to be declared exempt that the debts do not arise from the exercise of economic activities .
Regarding the imputation criterion in the case of losses derived from overdue and uncollected credits when a reduction established in a judicially comparable refinancing agreement, or in an extrajudicial payment agreement, becomes effective, see article 14.2.k) of the Law of the IRPF .
Compensation received as civil liability for personal injuries by the relatives of the victims of the accident of flight GWI9525
Regulations: Additional Provision fifty-first Personal Income Tax Law
With effect from March 31, 2022 and previous years not prescribed, the compensation received as civil liability for personal injuries by the relatives of the victims of the accident of flight GWI9525, which occurred on March 24, 2015, as well as the aid paid by the affected airline or by an entity linked to the latter.
New: Please note that Royal Decree-Law 6/2022, of March 29, has introduced this exemption with effect from March 31, 2022 and previous non-prescribed years.