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Practical manual for Income Tax 2022.

Specialty in the treatment of annuities for alimony in favor of children

Regulations: Articles 64 and 75 Law of the PIT

The annuities for food established in favor of the children and satisfied by the taxpayerdo not reduce the general tax base of the payer, but they are taken into account to calculate their full state and regional Personal Income Tax quota through the specialities established, respectively, in articles 64 and 75 of the Law of the PIT, the purpose of which is to reduce the progressivity of the tax in these cases.

For children who receive these annuities for food, these constitute exempt incomeaccording to article 7 of the Law of PIT.

On the other hand, remember that, in the case of compensatory pensions and alimony payments for persons other than children, the payer may apply the reductions in the tax base established in article 55 of the Law of PIT which is discussed in Chapter 13 of this manual.

For this purpose, taxpayers who pay annual child support payments to their children in the year 2022 by court order (or fixed through a regulatory agreement decreed judicially or formalized before the court clerk or in a public deed before a notary) without the right to apply theminimum per descendantprovided for in article 58 of the Law of PIT When the amount of the annuities is lower than the general taxable base, they will determine the quotas corresponding to the general taxable base (state part and autonomous part) in accordance with the following procedure:

  1. The amount of the annual maintenance payments will be differentiated from the rest of the general taxable base, thus obtaining two bases for the application of the tax scales:

    • Base "A": amount of the annual food allowance.
    • Base "B": remainder of the general taxable base.

  2. For each of the aforementioned bases, the general tax scale for 2022 will be applied in the state part and, for the autonomous part, the corresponding autonomous scale. As a result of this application, a quota of 1 and a quota of 2 are obtained for base "A", and a quota of 3 and a quota of 4 are obtained for base "B".

  3. The quotas obtained in the previous phase will be added together to determine the general state quota and the general regional quota. This sum is as follows:

    • General state quota (quota 5) = quota 1 + quota 3
    • General regional quota (quota 6) = quota 2 + quota 4

  4. Application of the general and regional tax scales to the part of the general taxable base corresponding to the personal and family minimum increased by 1,980 euros per year. As a result of this operation, quota 7 (general state quota) and quota 8 (regional quota) are obtained.

  5. Reduction of the quotas 5 and 6 determined in step 3 above by the amount of quotas 7 and 8, without any negative results as a result of said reduction.

    • General state quota = quota 5 − quota 7.
    • General regional quota = quota 6 − quota 8.

Clarifications

  1. The parent or parents who have custody of the children may apply the minimum for descendants, as they are the people with whom the descendants live, and will not be able to apply the specialities applicable in the cases of annuities for child support included in articles 64 and 75 of the Law of PIT. In the event that the custody of a child is terminated upon reaching the age of majority, the above will apply as long as the parent taxpayer in question continues to live with the child.

    On the other hand, parents who do not live with their children, but provide them with food by court order, may opt by applying the minimum for descendants, by supporting them financially, either by the application of the treatment provided for in articles 64 and 75 of the Law of PIT for food annuities. 

    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.

  2. Following the amendments introduced by Law 15/2015, of July 2, on Voluntary Jurisdiction, the regime established in articles 64 and 75 of the Law of PIT for child support annuities paid by court order, extends to those agreed upon in the regulatory agreement drawn up by the spouses before the Court Clerk or in a public deed before a Notary, as referred to in Article 90 of the Civil Code, whether or not its inclusion is mandatory.

  3. For the calculation of the annuities for child support to which the special regime of articles 64 and 75 of the Law of the PIT The monetary amount actually paid as an annual alimony payment will be taken into account, taking into account the provisions of Article 142 of the Civil Code, which states the following:

    "Food is understood to be everything that is essential for sustenance, housing, clothing and medical care.

    Maintenance also includes the education and instruction of the person receiving support while he or she is a minor and even afterwards, when he or she has not completed his or her education for reasons not attributable to him or her.

    Food will include pregnancy and childbirth expenses, unless otherwise covered.”

Note: Taxpayers who pay child support annuities by court order will apply the general tax scale separately to the child support annuities from the rest of the general taxable base, provided that they do not live with the child and have not opted to apply the minimum for descendants of those children.