Concept and requirements of descendants

Subject

For the purposes of applying this minimum, the following are considered "descendants": the children, grandchildren, great-grandchildren, etc., who are descendants of the taxpayer and who are related to him/her by a direct blood relationship or by adoption, without including persons related to the taxpayer by a collateral line (nephews) or by affinity (stepchildren).

For these purposes, descendants are considered to be those persons linked to the taxpayer by reason of guardianship or foster care, in the terms provided for in the applicable civil legislation or, outside of the previous cases, those who have been assigned their care and custody by court order.

Requirements

The minimum may only be applied to the taxpayer's descendants and those similar who meet each and every one of the following requirements :

a) That the descendant , in the terms discussed above, is under 25 years of age on the date of accrual of IRPF (normally, December 31 or on the date of death of the taxpayer if he or she dies on a day other than December 31), unless they are descendants with a degree of disability equal to or greater than 33 percent , in which case the minimum for descendants may be applied, regardless of their age, provided that the remaining requirements are met.

b) That the descendant lives with the taxpayer .

In cases of legal marital separation, when custody is shared, the family minimum for descendants will be prorated between both parents, regardless of who they are living with on the date of accrual of IRPF .

Otherwise, the family minimum for descendants will correspond to the person who, in accordance with the provisions of the judicially approved regulatory agreement, has been assigned the custody of the children on the date of accrual of the tax (normally, December 31), as this is the person with whom the descendants live.

The sporadic absence of a child from the habitual residence during the school year does not break the requirement of cohabitation required for the taxpayer to be able to apply the minimum for descendants, as long as the rest of the requirements established in this regard are met.

However, in this case it must be taken into account that economic dependency is assimilated to cohabitation, unless annual maintenance payments are made in favor of said children, which are taken into account for the calculation of the full quota.

In accordance with this legal regulation, the parent or parents who have custody of the children, even if shared, must apply the minimum for descendants because they are the people with whom the descendants live, and they may not apply the special provisions provided for in the cases of annual alimony in favor of children included in articles 64 and 75 of the Tax Law.

In the event that the custody of a child is terminated upon reaching the age of majority, the minimum for descendants will continue to apply as long as the parent taxpayer in question continues to live with the child. Likewise, if the adult descendant begins to live with the parent who pays annual maintenance payments, he or she will be entitled to the minimum, and not to the application of said annual payments.

On the other hand, parents who do not live with their children, but provide them with support by court order, may choose to apply the minimum for descendants, by supporting them financially, or to apply the treatment provided for by the IRPF Law for the aforementioned annual alimony payments. If the application of the minimum for descendants is chosen, this will be prorated between both parents.

However, in relation to the latter, take into account the change in criteria established by the TEAC resolutions of May 29, 2023 (claims numbers 00/08646/2022/00/00 and 00/10590/2022), issued in an extraordinary appeal for unification of criteria, by which the parent who pays annuities for child support and who is not assigned custody of them, not even on a shared basis, will apply the regime provided for annuities for child support, without being able to opt for the minimum for descendants.

See table application of the minimum per descendant and the option for joint taxation in the case of legal separations, divorces and annulments of spouses with children.

c) That the descendant has not obtained in the year 2022 income exceeding 8,000 euros per year , excluding income exempt from tax.

Note: For these purposes, the concept of annual income is constituted by the algebraic sum of net income (from work, movable and immovable capital, and economic activities), income imputations and capital gains and losses computed in the year, without applying the integration and compensation rules. However, the income must be computed at its net amount, that is, once the expenses have been deducted but without applying the corresponding reductions, except in the case of income from work, in which the reduction provided for in article 18 of the Income Tax Law may taken into account when applied prior to the deduction of expenses.

d) That the descendant does not file a IRPF declaration with income exceeding 1,800 euros .

The following clarifications must be made in relation to this requirement:

• Individual taxation of the descendant. If the descendant files an individual IRPF declaration, whether it consists of a self-assessment or a draft declaration duly signed or confirmed, with income equal to or less than 1,800 euros, taxpayers with the right to apply the minimum for descendants, provided that the remaining required conditions are met. If their income is greater than 1,800 euros, none of them can apply the minimum for descendants.

• Joint taxation of the descendant with both parents. If the minor descendant files a joint return with his or her parents, they may apply the corresponding minimum per descendant in said return, provided that the remaining required conditions are met.

• Joint taxation of the descendant with one of the parents in cases of legal separation or when there is no marital bond . In these cases, the father or mother who pays taxes jointly with the descendants who form part of the family unit will apply the full minimum for descendants corresponding to them, and the other parent will not be entitled to the minimum when the children file a tax return, provided that the latter have incomes greater than 1,800 euros.

  If the condition of having income exceeding 1,800 euros is not met, the minimum for descendants will be distributed equally between the parents with whom the descendant lives, even when one of them pays taxes jointly with the children.

  In this last case, if one of the parents does not apply the minimum for descendants that corresponds to him/her (50%), the other parent does not have the right to apply the entire minimum for descendants.

  This same rule is applicable in cases where children under shared custody pay taxes jointly with one of their parents.

  However, if one of the parents dies during the tax period, and the descendant's income is greater than 1,800 euros, the minimum will be prorated 50% between the two parents, provided that the deceased parent at the date of death was entitled to the minimum for descendants, either due to cohabitation or due to economic dependency when the parent does not choose to apply annuities for maintenance, and that, in addition, the surviving parent pays taxes jointly with the descendant.

  See table application of the minimum per descendant and the option for joint taxation in the case of legal separations, divorces and annulments of spouses with children.

  Note: Please note that among the modalities that appear as family units, the one formed by the guardian and the person under guardianship is not contemplated, nor the case of foster care or, outside of these cases, of those who have been assigned their custody and care by court order, which prevents any possibility of jointly paying taxes for the IRPF in such cases.

Special case: death of one of the parents

In cases where one of the parents dies during the year, whether or not they are married, and the minor children or legally incapacitated adults subject to extended or rehabilitated parental authority have lived with both parents until the date of death, the minimum for descendants will be prorated in all cases between the parents, even if the other surviving parent pays taxes jointly with the minor children and they have incomes exceeding 1,800 euros, since it is considered that on the date of accrual of the tax both parents have the right to apply it.

Remember: in the terms previously mentioned, in the current fiscal year 2022 the taxpayer can apply the minimum for descendants in cases where these descendants, in order to obtain a refund, file an individual declaration for the IRPF , provided that the declared income does not exceed 1,800 euros.