1. Existence of an alteration in the composition of the taxpayer's assets
As an example, constitutes alterations in the composition of the taxpayer's assets as follows:
Onerous or lucrative transfers of goods or rights. Among the first, we can mention, as examples, the 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, goods or rights that do not derive from a prior transfer. This is the case, among others, of obtaining prizes of any type, whether in cash or in kind, subsidies, etc.
Exchanges of assets or rights.
Duly justified losses in assets.
On the contrary, the Law estimates that there is no alteration in the composition of the assets and, therefore, no capital gain or loss will occur in the following operations, provided that the award corresponds with the respective ownership fee:
Division of the common thing.
Dissolution of the community property or extinction of the matrimonial property regime of participation.
Dissolution of communities of property or separation of community members.
Excess adjudication in the dissolution of communities of property or separation of community members
So that the exercise of the action for division of the common property or the dissolution of the communities of property does not imply an alteration in the composition of the assets, it is necessary that the adjudications that are carried out when the undivision is undone or in the extinction of the condominium correspond to the share of ownership, since, in the event that one of the co-owners or community members are attributed assets or rights with a value greater than that corresponding to their share of ownership, there will be a patrimonial alteration in the other or others. co-owners or community members, and, where appropriate and depending on the variations in value that the property may have experienced, a capital gain or loss may be generated regardless of whether there is or is not cash compensation, the amount of which will be determined, in accordance with the provisions of article 34 of the Personal Income Tax Law, due to the difference between the acquisition and transfer values, values that are defined in articles 35 and 36 of the Personal Income Tax Law , to the 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 appeal no. 5110/2020 (RED: STS 3585/2022). The issue of cassational interest in the aforementioned ruling was to determine in which cases the compensation received by the community member, 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 asset between the moment of its acquisition and the moment of its award and, where appropriate, that compensation was higher than the value of the proportional part that would correspond to him on that good.
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 community member, to whom the property is not awarded when the condominium is dissolved, will entail for said community member the existence of a capital gain subject to Personal Income Tax , when there is an update of the value of that asset between the moment of its acquisition and the moment of its award and that difference in value is positive.
Regarding excess allocations the Resolution of the Central Economic-Administrative Court (TEAC) of June 7, 2018, Claim number 00/02488/2017, must be taken into account. , relapse into an extraordinary appeal for unification of criteria, whose criteria are included in the summary table which you can access at the end of chapter .
In these three cases (division of the common property, dissolution of the community property or extinction of the marital economic regime of participation and dissolution of communities of property or separation of community members) the values of the assets or rights cannot be updated. received, so they will retain their original values and dates of acquisition.
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 deemed that there is no alteration in the composition of the assets in the delivery of the loaned securities or in the return of the same number of 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 been repealed with respect only to said tax, with effective 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 Personal Income Tax remains in force.