Principal Residence item

Regulations: Additional Provision twenty-third Law Personal Income Tax and 41 bis Regulation Personal Income Tax . See also art. 55.5 Regulation Personal Income Tax , in the wording in force as of December 31, 2012

For the purposes of applying this exemption:

1. The taxpayer's habitual residence is considered to be the building in which the taxpayer resides for a continuous period of at least three years .

However, it will be understood that the residence had the character of habitual residence, when, despite said period not having elapsed, the death of the taxpayer occurs or other circumstances occur that necessarily require the change of address, such as celebration of marriage, separation marriage, job transfer, obtaining the first job or change of job or other justified analogues.

The regulatory expression "circumstances that necessarily require a change of address" makes said change mandatory. The term “necessarily” is an adverb so that, according to the Dictionary of the Royal Academy, it means with or by necessity or precision. In turn, the term “need” can indicate everything from which it is impossible to escape, lack or resist. The noun precision, included in the definition of “necessarily”, is even more illuminating, since it implies an indispensable obligation or need that forces and requires the execution of something. Finally, one of the definitions of “necessary” confirms the above: It is said about what is done and executed under the obligation of something else, as opposed to voluntary and spontaneous.

Consequently, its application requires considering whether, in a certain situation, changing domicile is an option for the taxpayer or is outside of their will or convenience; That is to say, the fact that one of the listed or other similar circumstances occurs is not decisive in itself, nor does it simply constitute an exception to the requirement of the general term of effective residence of three years. In the first case, that is, if the taxpayer maintains the possibility of choosing, there will not be a circumstance that allows the three-year period to be waived and, therefore, if the taxpayer decides to change address, not for This means that the home will be considered habitual. Along the same lines, it can be stated that if the concurrence of circumstances analogous to those listed in the twenty-third Additional Provision of Law Personal Income Tax is proven, the three-year period may be waived, provided that They also require a change of address.

2. For the acquired home to constitute the taxpayer's habitual residence, it must be effectively and permanently inhabited by the taxpayer himself, within a period of twelve months , counted from the date acquisition or completion of works.

However, it will be understood that the acquired home does not lose its habitual character when the following circumstances occur:

• When the death of the taxpayer occurs.

• When other circumstances arise that necessarily prevent the occupation of the home in the terms provided above.

• When the taxpayer enjoys a habitual residence due to position or employment and the acquired one is not used, in which case the period of twelve months will begin to be counted from the date of cessation.

When the home has been effectively and permanently inhabited by the taxpayer within a period of twelve months, counted from the date of acquisition or completion of the works, the three-year period to consider it as the taxpayer's habitual residence is will be computed from this last date .

Occupation within twelve months.

Regarding this requirement of occupation of the habitual residence within the twelve months established in article 41 bis of the Personal Income Tax Regulation keep in mind that it does not constitute an additional requirement for the consideration of the building as a habitual residence but rather extends the deduction for investment in housing since the taxpayer may apply the deduction even if he does not reside in it as long as he occupies it within that period. This deduction, however, will not be consolidated until the residence acquires the status of habitual residence, a fact that, as we have said, will occur when the taxpayer resides there for a continuous period of three years.

3. For the exclusive purposes of applying the exemption, it will be understood that the taxpayer is transferring his habitual residence when it constitutes his habitual residence at that time or had had such consideration until any day of the two years prior to the date of transmission.

Compliance with this requirement: case of separated or divorced spouses

Take into account the interpretative criteria established by the Supreme Court in its ruling no. 553/2023, of May 5, relapsed into contentious-administrative appeal no. 851/2021 ( RED : STS 2021/2023), according to which "in situations of separation, divorce or annulment of marriage that have determined the cessation of effective occupation as a habitual residence for the spouse who has to leave the habitual residence for such reasons, the requirement of effective occupation of the habitual residence at the time of the transfer or on any day of the two years prior to the transfer, which is required by section 3 of article 41 bis of the Personal Income Tax Regulation , "It will be considered fulfilled when such situation occurs in the spouse who remained in the same relationship." Therefore, the exclusive effects of the application of the exemptions provided for in articles 33.4. b) and 38 of the Personal Income Tax Law , it will be understood that the taxpayer who had to abandon the habitual family home due to attribution of use to the other spouse, is transferring the habitual residence when, for the spouse that he remained in the same constitutes his habitual residence at that time or would have had such consideration until any day of the two years prior to the date of transfer.