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Practical Income Manual 2022.

Capital gains and losses that make up the tax base of savings

Regulations: Art. 46 Law Personal Income Tax

The capital gains and losses that are revealed on the occasion of transfers of assets are part of the savings tax base and must be declared in the corresponding heading of section F2 of the declaration.

The following may be cited as examples:

  • Capital gains and losses derived from transfers or redemptions of shares or participations in collective investment institutions (investment companies and funds).

    These capital gains have been subject to withholding or payment on account of 19 percent in fiscal year 2022. The amount of these withholdings and payments on account must be declared in the section of the declaration corresponding to withholdings and other payments on account.

  • Capital gains and losses derived from shares or participations traded in official markets.

  • Capital gains and losses derived from the transmission or exchange of virtual currencies by individuals.

  • Capital gains and losses derived from the transfer of real estate and real rights over real estate.

    Capital gains and losses derived from the receipt of premiums paid for the granting of a purchase option contract .

    The purchase option contract on a property is one in which one of the parties (grantor) grants the other (optionee) the exclusive power to decide whether or not to celebrate a main purchase and sale contract, which must be concluded. within a certain period and, under certain conditions, which may be accompanied by the payment of a premium or price by the opting party.

    Through the purchase option contract, the buyer acquires a right, consisting of unilaterally deciding whether to make the purchase, and for the transferor, the corresponding obligation arises to sell the object for the agreed price and within the period established for the exercise of the right. the option. The grantor of the option is bound to maintain the offer within the predetermined period, within which the opter can make use of his right, the purchase option being then extinguished or consummated, while the corresponding purchase and sale contract is perfected.

    The granting of this purchase option (in exchange for the payment of a premium) represents an exercise and limitation of the "ius disposendi" of its owner (as the grantor undertakes not to dispose of the asset during the option period), which represents an alteration in the composition of the assets of the owner of the property, a situation that may be included in the concept of asset alteration of the IRPF normative provision, so the income obtained is a capital gain that is taxed independently of that, If applicable, it may occur later on the occasion of the formalization of the sale.

    The income obtained in exchange for offering the right of purchase option (the contract premium) constitutes a gain whose imputation must be made, in accordance with the provisions of article 14.1 of the Personal Income Tax Law, in the tax period in which it is obtained. formalize the right of purchase option on the property and its amount will be determined by the value actually paid as long as it is not lower than the market value, as there is no cost of acquisition or improvement, because said alteration does not derive from a previous acquisition.

    Regarding the integration of the capital gains that are revealed on the occasion of the receipt of the premiums paid for the granting of an option contract, the TS Rulings 803/2022 and 804/2022, both of June 21 ( RED: STS 2599/2022 and STS 2598/2022, respectively) have established as a criterion its integration into the savings income defined in article 46 of the Personal Income Tax Law, as it implies a transfer, based on "traditio", derived from the delivery of powers inherent to property rights that the owner temporarily renounces.

  • Capital gains and losses derived from transfers of other assets such as, for example, shares not admitted to trading, etc.