Example 1: Donation of shares
Mrs. PSM acquired on the Stock Exchange on December 1, 1998 a package of shares of the Public Limited Company “Z” for an amount equivalent to 6,000 euros. On October 30, 2022, he donated them to his son, on the occasion of his twentieth birthday.
The valuation of the shares on the aforementioned date, according to their price on the official market, amounted to 7,500 euros, an amount that the son declared as their value for the purposes of the Inheritance and Donation Tax.
Two capital gains have been produced in this operation:
The first of them is the one obtained by Mrs. PSM since, despite having donated the shares to his son and not having obtained anything in return, their market value during the time in which they were in his possession increased by 1,500 euros, an amount that constitutes a capital gain subject to IRPF , which must be understood as attributable to Mrs. PSM when transmitting them.
The second gain is the one obtained by his son and whose amount amounts to 7,500 euros, an amount that coincides with the market value of the shares received. However, this gain is not subject to Personal Income Tax , but to the Inheritance and Donation Tax in which the child is considered a taxable person.
Example 2: Dissolution of communities of property without patrimonial alteration
Mrs. RLM and Mrs. GLM They are sisters and in June 1995 they acquired, through inheritance from their father, a rural property whose valuation for the purposes of the Inheritance and Donation Tax amounted to an amount equivalent to 3,000 euros, with notary, registration and Inheritance and Donation Tax expenses increasing to the equivalent. at 500 euros.
In March 2022 they decide to divide the property into two equal plots and each one is awarded full ownership of the corresponding plot, which is valued in the public deed of division at 30,000 euros.
As the action carried out by the sisters has consisted solely of the division of the common property, each of them being awarded a plot that corresponds to the share of ownership, no patrimonial alteration is produced in that act and, therefore, there is no patrimonial gain. for none of them. Each of the plots into which the property has been divided is incorporated into the assets of each sister for its original value, (3,000 + 500) ÷ 2 = 1,750 euros, and with the date of June 1995.
Example 3: Dissolution of communities of assets with excess allocation
The same previous example if one of the sisters were awarded the entire property, compensating the other in cash for half the amount at which it is valued in the public deed of division of the same.
In this case, there would have been an excess of allocation, understood as the difference in value, which generates a change in assets.
The compensation received by the sister to whom the property is not awarded when the common property is divided would entail for her a capital gain subject to Personal Income Tax , as there is an update of the value of that property between the moment of its acquisition (3,500 ÷ 2 = 1,750 euros) and the moment of its award (30,000 ÷ 2 = 15,000 euros) and that difference in value be positive (15,000 - 1,750 = 13,250 euros).
See in this regard the Supreme Court ruling of October 10, 2022, appeal no. 5110/2020. (RED: STS 3585/2022).
Example 4: Individual business donation
Don JVC, 65, has donated his individual company founded 30 years ago to his son. The company meets the requirements contemplated in the Wealth Tax Law for its exemption, as well as those required for the application of the 95 percent reduction contemplated in the Inheritance and Donation Tax Law.
In the lucrative transfer of the company, the son (donee) may apply the 95 percent reduction contemplated in article 20.6 of the Inheritance and Donation Tax Law.
The father (donor) will not obtain any capital gain or loss in the transfer of his company, and the donee will be subrogated to the position of the donor with respect to the values and dates of acquisition of the assets that make up the company. In short, there is a deferral in taxation that will become evident when the donee transfers the respective assets.
Example 5: Transfer of habitual residence for people over 65 years of age
The marriage formed by Don MPT and Ms. JLC, 70 and 68 years old, respectively, sold their primary home on May 25, 2022 for an amount of 250,000 euros.
Said home was acquired by both spouses under a legal partnership regime on March 13, 1980 for an amount equivalent to 60,000 euros, including the expenses and taxes inherent to said acquisition.
Determine the tax consequences of said transfer.
As both spouses are over 65 years of age, the capital gain derived from the transfer of their habitual residence is exempt from Personal Income Tax