Concept and requirements of descendants

Subject

They are considered "descendants" for the purposes of applying this minimum, the children, grandchildren, great-grandchildren, etc., who are descendants of taxpayer and who are linked to This is due to a direct line of kinship by consanguinity or adoption, without including people linked to the taxpayer by a collateral line of kinship (nephews) or by affinity (stepchildren).

Descendants are assimilated to , for these purposes, people linked to the taxpayer by reasons of guardianship or foster care, in the terms provided for in civil legislation applicable or, outside of the previous cases, to those whose custody and custody have been attributed by judicial resolution.

Requirements

The minimum may only be applied by descendants and equivalents of the taxpayer who meet each and every one of the following requirements :

a) That the descendant , in the terms previously discussed, is under 25 years old on the date of accrual of the personal income tax (normally, December 31 or on the date of death of the taxpayer if he or she dies on a day other than December 31), except in the case of descendants with a degree of disability equal to or greater than 33 per 100 , in which case the minimum may be applied for descendants, 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 Personal Income Tax .

Otherwise, the family minimum for descendants will correspond to whoever, in accordance with the provisions of the judicially approved regulatory agreement, has custody of the children on the date of accrual of the tax (normally, December 31), for This being 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 cohabitation requirement 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 that case it must be taken into account that economic dependence is assimilated to cohabitation, unless annuities for food are paid in favor of said children that are taken into account for the calculation of the full fee.

In accordance with this legal regulation, the parent or parents who have custody of the children, even if it is shared, must apply the minimum for descendants because they are the people with whom the descendants live, and will not be able to apply the specialties provided for the children. cases of annuities for alimony in favor of the children included in articles 64 and 75 of the Personal Income Tax Law .

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

On the other hand, parents who do not live with their children, but provide them with support by judicial resolution, may opt for the application of the minimum for descendants, by supporting them financially, or for the application of the treatment provided for by the Law of IRPF for the aforementioned annuities for food. If the minimum is applied for descendants, it 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), relapses in an extraordinary appeal for unification of criteria, by which the parent who pays annuities for maintenance in favor of the children and who is not assigned custody of them, not even on a shared basis, will apply the regime provided for the annuities for food, without being able to opt for the minimum for descendants.

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

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

Note: For these purposes, the concept of annual income is constituted by the algebraic sum of the net income (from work, movable and real estate 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 for its net amount, that is, once 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 the Article 18 of the Personal Income Tax Law when applied prior to the deduction of expenses.

d) That the descendant does not file a personal income tax return with income greater than 1,800 euros .

In relation to this requirement, the following clarifications must be made:

• Individual taxation of the descendant. If the descendant presents an individual tax return for Personal Income Tax , 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, eligible taxpayers can apply the minimum for descendants, provided that the remaining requirements are met. If the 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 can apply the corresponding minimum for descendants to said return, as long as the remaining requirements 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 are part of the family unit, will fully apply the minimum for descendants corresponding to them, and the other parent will not be entitled to the minimum when the children present their declaration, provided that the latter have incomes greater than 1,800 euros.

  If the assumption of having income greater than 1,800 euros is not met, the minimum for descendants will be distributed equally among the parents with whom the descendant lives, even if one of them pays joint taxes with the children.

  In this last case, if one of the parents does not apply the corresponding minimum for descendants (50 percent), the other parent does not have the right to the application in its entirety of the aforementioned minimum for descendants.

  This same rule is applicable in cases where children under shared guardianship and custody are taxed 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 on the date of death was entitled to the minimum for descendants, whether due to cohabitation or economic dependence when the parent does not choose to apply annuities for food, and that, in addition, the surviving parent pays taxes jointly with the descendant.

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

  Note: Keep in mind that among the modalities that appear as family units, the one formed by the guardian and the ward is not contemplated, nor the case of foster care or, outside of these cases, those who have been assigned guardianship and custody by judicial resolution, which prevents any possibility of paying joint taxes for Personal Income Tax 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 there is a marriage between them, and the minor children or children of legal age who are legally incapacitated and subject to extended or rehabilitated parental authority, have lived with both parents to 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 income greater than 1,800 euros, since it is considered that on the date of accrual of the tax the Two parents have the right to apply.

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