Specialty in the treatment of annuities for alimony in favor of children
Regulations: Articles 64 and 75 Law of Personal Income Tax
The annuities for maintenance established in favor of the children and paid by the taxpayer do 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 specialties established, respectively, in articles 64 and 75 of the Personal Income Tax Law , whose purpose is to reduce the progressivity of the tax in these cases.
For children who receive said annuities for maintenance, these constitute exempt income in accordance with article 7 of the Personal Income Tax Law .
On the other hand, remember that, in the case of compensatory pensions and annuities for alimony in favor of people other than the children , the payer may apply the reductions in the tax base established in the article 55 of the Personal Income Tax Law discussed in Chapter 13 of this manual.
To this end, taxpayers who pay child support annuities in the 2022 financial year by judicial decision (or established through a regulatory agreement decreed judicially or formalized before the Judicial Secretary or in a public deed before a Notary) without the right to apply the minimum for descendants provided for in article 58 of the Personal Income Tax Law will determine, when the amount of the annuities is less than the general taxable base, the contributions corresponding to the general liquidable base (state part and autonomous part) in accordance with the following procedure:
The amount of the annuities for maintenance will be differentiated from the rest of the general liquidable base, thus obtaining two bases for the application of the tax scales:
- Base "A": amount of the annuity for food.
- Base "B": rest of the general liquidable base.
To each of the aforementioned bases, the general tax scale for 2022 will be applied in the state part and, in the regional part, the corresponding regional scale. As a consequence of said application, a quota 1 and a quota 2 are obtained for base "A", and for base "B" a quota 3 and a quota 4 are obtained.
The quotas obtained in the previous phase will be added to determine the general state quota and the general regional quota. This sum is the following:
- State general fee (quota 5) = quota 1 + quota 3
- Regional general quota (quota 6) = quota 2 + quota 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.
Reduction of installments 5 and 6 determined in step 3 above in the amount of installments 7 and 8, without them being negative as a consequence of said reduction.
- General state quota = quota 5 − quota 7.
- Regional general quota = quota 6 − quota 8.
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 may not apply the specialties applicable in the 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 above will apply as long as the parent taxpayer in question maintains cohabitation with the child.
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 by the application of the treatment provided for in articles 64 and 75 of the Personal Income Tax Law for alimony 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), 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.
Based on the modifications introduced by Law 15/2015, of July 2, on Voluntary Jurisdiction, the regime established in articles 64 and 75 of the Personal Income Tax Law for annuities for maintenance in favor of the children paid by judicial decision, extends to those agreed upon in the regulatory agreement formulated by the spouses before the Judicial Secretary or in a public deed before a Notary, to which it refers Article 90 of the Civil Code, whether or not its inclusion is mandatory.
To calculate the annuities for alimony for children to whom the special regime of articles 64 and 75 of the Personal Income Tax Law applies, the monetary amount will be taken into account. that has actually been paid as an annuity for food, 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.
Food also includes the education and instruction of the obligor while he is a minor and even afterward, when he has not completed his training for reasons not attributable to him.
Food will include the expenses of pregnancy and childbirth, insofar as they are not otherwise covered.
Note: Taxpayers who pay annuities for support to their children by judicial decision will apply the general tax scale separately to the annuities for support from the rest of the general taxable base, as long as they do not live with the child and have not opted for the application of the minimum. by descendants of those children.