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Practical manual for Income Tax 2022.

1. Existence of an alteration in the composition of the taxpayer's assets

As an example, the following constitute alterations in the composition of the assets of the taxpayer:

  • Onerous or lucrative transfers of assets or rights. Examples of the former include sales of homes, commercial premises, parking spaces, rural properties, shares, etc. and, among the latter, inheritances, legacies and donations.

  • The incorporation into the taxpayer's assets of money, assets or rights that do not derive from a prior transfer. This is the case, among others, of obtaining prizes of any kind, whether cash or in kind, subsidies, etc.

  • The exchange of goods or rights.

  • Duly justified losses in assets.

On the contrary, the Law considers that there is no alteration in the composition of the assets and, therefore, there will be no capital gain or loss in the following operations, provided that the award corresponds to the respective ownership share:

  1. Division of the common thing.

  2. Dissolution of the community property or termination of the matrimonial economic regime of participation.

  3. Dissolution of community property or separation of commoners.

    Excess allocation in the dissolution of property communities or separation of co-owners

    In order for the exercise of the action for division of the common property or the dissolution of the community of property not to imply an alteration in the composition of the estate, it is necessary that the awards made when the joint ownership is dissolved or when the condominium is extinguished correspond to the share of ownership, since, in the event that one of the co-owners or commoners is awarded assets or rights worth more than the value corresponding to their share of ownership, there will be an alteration in the assets of the other co-owner or co-owners, which may generate, where appropriate and depending on the variations in value that the property may have experienced, a capital gain or loss regardless of whether or not there is compensation in cash, the amount of which will be determined, in accordance with the provisions of article 34 of the Personal Income Tax Law, by the difference between the acquisition and transfer values, values that are defined in articles 35 and 36 of the Income Tax Law. , for onerous and lucrative transfers, respectively, which are developed in the section “ Determination of the amount of capital gains or losses: general rules ” of this Chapter.

    The above has been confirmed by the Supreme Court in its Judgment of October 10, 2022, issued in cassation appeal no. 5110/2020 (ROJ: STS 3585/2022). The issue of interest in the aforementioned judgment was to determine in which cases the compensation received by the commoner, to whom the property is not awarded when a condominium is dissolved, entails for him the existence of a capital gain subject to IRPF , taking into consideration the possible difference in valuation of that property between the time of its acquisition and the time of its award and, where appropriate, whether that compensation was greater than the value of the proportional part that corresponded to him on that property.

    In its third legal basis, the Supreme Court proceeds to answer the aforementioned question, establishing its interpretative criteria in the sense that the compensation received by a co-owner, to whom the property is not awarded when the condominium is dissolved, will entail for said co-owner the existence of a capital gain subject to IRPF , when there is an update of the value of that property between the moment of its acquisition and that of its award and that difference in value is positive. 

    Regarding the excess awards the Resolution of the Central Economic-Administrative Court (TEAC) of June 7, 2018, Claim number 00/02488/2017, issued in an extraordinary appeal for unification of criteria, whose criteria are included in the summary table which can be accessed at the end of chapter , must be taken into account.

    In these three cases (division of common property, dissolution of the community property or termination of the matrimonial economic regime of participation and dissolution of community property or separation of co-owners) the values of the assets or rights received cannot be updated, so they will retain their original values and dates of acquisition.

  4. Likewise, in accordance with the provisions of the Eighteenth Additional Provision of Law 62/2003, of December 30, on fiscal, administrative and social order measures ( BOE of December 31), it will be estimated that there is no alteration in the composition of the assets in the delivery of the securities on loan or in the return of other homogeneous securities at the maturity of the loan in the terms and with the requirements established in the aforementioned Additional Provision.

    Please note that Law 27/2014, of November 27, on Corporate Tax ( BOE of November 28), has repealed, with regard to said tax only, with effect from January 1, 2015, section 2 of the Eighteenth Additional Provision of Law 62/2003, of December 30, which establishes the tax regime applicable to securities lending operations. Therefore, the tax treatment provided for in the aforementioned Eighteenth Additional Provision of Law 62/2003 when the lender or borrower is a taxpayer for the IRPF remains in force.