Other requirements and conditions for the application of the exemption
A. Total or partial reinvestment
The reinvestment in the acquisition of a new home of the amount obtained with the transfer can be total or partial.
To apply the reinvestment exemption, it is not necessary to use in its entirety the money obtained from the sale of the previous home, and it is sufficient to apply money borrowed from a third party for the same purpose, either directly or as a consequence of subrogation in a loan previously contracted by the transferor of the property. Therefore, to consider the reinvestment carried out, the entire acquisition value of the new home will be taken into account, regardless of whether its amount has been paid or financed and whether said acquisition value of the new home is equal to or greater than that of the old one. , the reinvestment will be total. Otherwise, it will be partial (Supreme Court Ruling No. 1230/2020, of October 1, 2020, issued in contentious-administrative appeal No. 809/2019 -ROJ STS 3049/2020-).
When the amount of the reinvestment is less than the total amount obtained from the transfer, only the portion of the capital gain corresponding to the amount effectively reinvested is excluded from the tax, under the conditions outlined previously.
Keep in mind that in the case of partial reinvestment, the proportional part of the capital gain obtained will be excluded from taxation, once applied, if applicable, the exemption provided for in the thirty-seventh Additional Provision of the Law of IRPF (exemption of 50 percent of the capital gain obtained from the transfer of properties acquired between May 12, 2012 and December 31, 2012), which corresponds to the amount reinvested, in the terms and conditions provided for the exemption for reinvestment of habitual residence.
B. Reinvestment Term
The reinvestment of the amount obtained in the sale must be carried out, in one go or successively, in a period not exceeding two years , counted from date to date, which may be not only the subsequent ones but also the previous ones to the sale of the previous habitual residence.
The reinvestment to which this exemption is conditioned does not involve investing in the new home exactly the money obtained specifically and directly in the transfer of the old habitual residence, (...). What the IRPF regulations want to benefit, through this exemption, is for the taxpayer to invest within a period of two years, after or before the sale, an amount equivalent to the total amount obtained from the transfer, which would give rise to a total exemption of the gain, or, where appropriate, to a partial exemption in proportion to the amounts reinvested within said two-year period. Resolution of the extraordinary appeal for the unification of criteria of the TEAC dated September 11, 2014, Claim number 00/02463/2013 , relapse in extraordinary appeal for unification of criteria.
The reinvestment is not made after the deadline if the sale was made in instalments or at a deferred price, provided that the amount of the instalments is used for the stated purpose within the tax period in which they are received.
Attention calculation of the Covid-19 period: by virtue of the ninth Additional Provision of Royal Decree-Law 11/2020, of March 31, which adopts complementary urgent measures in the social and economic sphere to confront Covid-19 (BOE of April 1) and of the modification of the time references provided for in the first Additional Provision of Royal Decree-Law 15/2020, of April 21, on complementary urgent measures to support the economy and employment (BOE of April 22):
For the purposes of the two-year period provided for the reinvestment in a new home of the amount obtained from the sale of the old home, the calculation of said period is paralyzed from March 14, 2020, the date of entry into force of Royal Decree 463. /2020, until May 30, 2020.
Likewise, the period for acquiring the new habitual residence within the two years prior to the transfer of the old habitual residence for the application of the exemption is also suspended from March 14, 2020 to May 30, 2020.
Finally, for the purposes of the period provided for in article 41 bis.3 of the Personal Income Tax Regulation computed from when the home ceased to be habitual until it is sold, it has been paralyzed the calculation of said period from March 14, 2020, the date of entry into force of Royal Decree 463/2020, until May 30, 2020 .
C. Option to apply the exemption
In relation to the specific mode or form through which the option for the reinvestment exemption must be expressed, the following situations must be distinguished:
Reinvestment produced in the same year in which the capital gain is obtained or in the two previous years . In this case, no formal obligation is required in relation to the option for exemption, provided that its application is not contradicted by any other circumstance in the declaration for the same or subsequent years.
- Reinvestment produced in the following two years . When the taxpayer intends to reinvest in the following two years, he must state in the declaration for the year in which he obtains the capital gain his intention to reinvest under the conditions and deadlines established by regulation, completing section F2 and the corresponding section. of Annex C.2 of additional information of the declaration model.
The completion of the corresponding section of Annex C.2, which constitutes a formal duty, does not, however, have a substantial or mandatory nature to be able to apply the reinvestment exemption, provided that the application of the exemption is not contradicted by any other circumstance of the declaration of the same or subsequent years.
See in this regard the Resolution of the TEAC of September 8, 2016, Claim number 00/06371/2015 , relapse in extraordinary appeal for unification of criteria.
D. Failure to comply with the conditions of the reinvestment
Failure to comply with any of the conditions of the reinvestment determines the subjection to taxation of the corresponding part of the capital gain.
In such case, the taxpayer must allocate the part of the capital gain that is not exempt to the year of its obtaining, carrying out, for this purpose, complementary self-assessment including late payment interest.
This last declaration will be presented in the period between the date on which the non-compliance occurs and the end of the regulatory declaration period corresponding to the tax period in which said non-compliance occurs.
It must be carefully distinguished, depending on whether the non-compliance affects the reinvestment term or the reinvested amount. In the latter case, the right to exemption from the capital gain obtained corresponding to the reinvested amount is not lost.
Don MGB, 56 years old, transfers his habitual residence in 2022 for an amount of 95,000 euros. Said home was acquired in 1995 for an amount equivalent to 60,000 euros, including the expenses and taxes inherent to said acquisition. The financing of said acquisition was carried out through a mortgage loan of which, at the time of sale, an amount of 4,000 euros remains to be repaid.
Of the amount obtained from the sale, allocate 4,000 euros to the repayment of the outstanding loan.
In the same year 2022, he purchases a new primary home for an amount of 91,000 euros, investing for this purpose the rest of the amount obtained from the sale of his previous home.
Determine the amount of capital gain exempt from reinvestment.
Transfer value: 95,000
Acquisition value: 60,000
Capital gain (95,000 - 60,000) = 35,000
Capital gain exempt from reinvestment: 35,000
Capital gain subject to tax: 0
Note to example: Given the existence of a mortgage loan on the transferred home, the amount that must be reinvested to obtain the total exemption of the capital gain obtained is the difference between the transfer value (95,000 euros) and the amount allocated to the pending amortization of the mortgage loan. (4,000 euros), that is, 91,000 euros, the amount that has been effectively reinvested.