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Practical manual for Income Tax 2023.

Capital gains and losses that make up the tax base of savings

Regulations: Art. 46 Law Income Tax

Capital gains and losses that arise from transfers of assets form part of the taxable savings base and must be declared in the corresponding section of section F2 of the tax return.

The following may be cited as examples:

  • Capital gains and losses arising from transfers or reimbursements of shares or interests in collective investment institutions (investment companies and funds).

    These capital gains have been subject to withholding or payment on account of 19% in the 2023 fiscal year. The amount of these withholdings and payments on account must be declared in the section of the declaration corresponding to withholdings and other payments on account.

  • Capital gains and losses derived from shares or interests traded on official markets.

  • Capital gains and losses arising from the transfer or exchange of virtual currencies by individuals.

  • Capital gains and losses arising from the transfer of real estate and property rights over real estate.

    Capital gains and losses arising from the receipt of premiums paid for the granting of a purchase option contract .

    The purchase option contract on a property is one in which one of the parties (grantor) grants the other (option holder) the exclusive power to decide whether or not to enter into a main contract of sale, which must be entered into within a certain period and under certain conditions, and may be accompanied by the payment of a premium or price by the option holder.

    Through the purchase option contract, the option holder acquires a right consisting of deciding unilaterally to make the purchase, and the transferor has the corresponding obligation to sell the object for the agreed price and within the period established for exercising the option. The option grantor is bound to maintain the offer within the predetermined period, within which the option holder may exercise his right, thereby extinguishing or consummating the purchase option, at the same time as the corresponding sales contract is perfected.

    The granting of this purchase option (in exchange for the payment of a premium) represents an exercise and limitation of the "ius usandi" of its holder (in that the grantor undertakes not to dispose of the asset during the option period), which represents an alteration in the composition of the assets of the owner of the asset, a situation that may be included in the concept of alteration of assets in the personal income tax regulations, so the income obtained is a capital gain that is taxed independently of any gain that may be produced subsequently on the occasion of the formalisation of the sale.

    The income obtained in exchange for offering the right to purchase (the contract premium) constitutes a gain whose imputation must be made, in accordance with the provisions of article 14.1 of the Personal Income Tax Law, in the tax period in which the right to purchase the property is formalized and its amount will be determined by the value actually paid, provided that it is not less than the market value, as there is no acquisition or improvement cost, because said alteration does not derive from a previous acquisition.

    As regards the integration of capital gains that arise from the receipt of premiums paid for the granting of an option contract, Supreme Court Judgments No. 803/2022 and 804/2022, both dated June 21 ( ROJ : STS 2599/2022 and STS 2598/2022, respectively) have established as a criterion its integration into the savings income defined in article 46 of the Personal Income Tax Law, since it implies a transfer, based on the "traditio", derived from the delivery of powers inherent to the right of ownership to which the owner temporarily renounces.

  • Capital gains and losses arising from transfers of other assets such as, for example, shares not admitted to trading, etc .