Constitution of usufruct
|Ways to establish
|Owner who constitutes the usufruct
|Person in favor of whom the usufruct is established
In favor of a third party
The dismemberment of the full domain into bare ownership and usufruct occurs. The owner creates “ex novo” the right of usufruct that did not previously exist, so it is not transmitted, but rather constituted.
By acts inter vivos (sale by price)
Real estate capital returns ( Personal Income Tax ):
The holder of the usufruct right (and not the bare owner) is the one who has the right to use and enjoy and receives the fruits of the property, for which reason the following income is attributed to him in Personal Income Tax :
A. If you lease or transfer the property: Returns on real estate capital .
To calculate the net return on real estate capital, it must be taken into account that the tax-deductible amortization is that which corresponds to the right of usufruct [article 23.1.b) of the Personal Income Tax Law and 14.3 of its Regulations], which will be:
B. If the property is at your disposal and is not rented or transferred: Imputation of real estate income .
Free of charge
a. By acts inter vivos
b: By acts mortis causa:
- Intestate succession (widow usufruct)
A. If it can be proven that the constitution of the usufruct was gratuitous or if the usufructuary was taxed in the ISD due to the creation of the usufruct right
By acts inter vivos (donation) : obtains income from real estate capital that, when free of charge, is limited to the imputation of the net income provided for in article 85 of the Personal Income Tax Law during each of the years of usufruct duration .
B. By mortis causa: They do not pay Personal Income Tax .
If it cannot be proven that it was free of charge
Unless proven otherwise, it is presumed that the constitution of the right of usufruct is remunerated (article 6.5 Law of Personal Income Tax ) so it gives rise to obtaining capital returns real estate , which must be valued, in accordance with article 40 of the Personal Income Tax Law , at the normal market value, without prejudice to the application of the rules of minimum return in the case of constitution of the usufruct in favor of the spouse or a relative, including relatives, up to the third degree inclusive (article 24 of the Personal Income Tax Law ) or the application 30% reduction for income obtained in a notoriously irregular manner over time in the case of lifetime usufruct (article 15 of the Personal Income Tax Regulations ).
This table is for informational purposes only.