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Practical manual for Income Tax 2023.

Allocation of capital gains and losses incurred in 2023

General criteria

Regulations: Art. 14. 1. c) Law Income Tax

The declaration and determination of the amount of capital gains and losses must be made and attributed to the tax period in which the change in assets occurs.

Special criteria

Regulations: Art. 14.2.c), d), g), i), j) and k) Law Income Tax

A. Deferred price or installment transactions

In these cases, the taxpayer may choose to proportionally impute the capital gains or losses produced, as the corresponding collections become due.

Transactions with a deferred price or term will be considered those whose price is received, totally or partially, through successive payments, provided that the period elapsed between the delivery of the asset or the provision of the asset or right and the expiration of the last installment is greater than one year.

When the payment of a transaction in installments or with a deferred price has been carried out, in whole or in part, through the issuance of exchange bills and these were transferred definitively before their maturity, the income will be imputed to the tax period of its transfer.

Note: the exercise of the option for the temporary imputation of the application of the deferred collection criterion will be carried out, element by element, in the section "Capital gains and losses with deferred price pending imputation in future years" of Annex C.1 of the declaration.

In no case will operations derived from life annuity or temporary annuity contracts be treated in this way for the transferor. When assets and rights are transferred in exchange for a life or temporary annuity, the capital gain or loss for the annuitant will be attributed to the tax period in which the annuity is established.

B. Public aid

In general: Capital gains derived from public aid will be imputed to the tax period in which they are collected , without prejudice to the options listed below:

  • Public aid received as compensation for structural defects in the habitual residence . When such aid is intended for the repair of the habitual residence it may be imputed in quarters in the tax period in which it is obtained and in the following three.

    Precision: This criterion is introduced, with effect from 1 January 2015, by Law 26/2014, of 27 November, which modifies Law 35/2006, of 28 November, on Personal Income Tax ( BOE of 28 November). Previously, the administrative criterion in these cases established the imputation at the time when the grantor communicated the concession to the applicant, regardless of the time of payment. However, if, in accordance with the requirements of the grant, the payment of the subsidy became due after the year of its communication, the profit generated by the subsidy had to be attributed to the tax period in which the corresponding amount was due. 

  • Direct state aid for down payment on housing . Aid included in the scope of state plans for access, for the first time, to home ownership, received by taxpayers, from 1 January 2002, through a single payment in the form of Direct State Aid for Entry (AEDE), may be imputed in quarters in the tax period in which they are obtained and in the following three.

  • Public aid to owners of assets of the Spanish Historical Heritage registered in the General Registry of assets of cultural interest . These grants, intended exclusively for their conservation or rehabilitation, may be imputed in quarters in the tax period in which they are obtained and in the following three, provided that the requirements established in Law 16/1985 of June 25, on the Spanish Historical Heritage, are met, in particular with regard to the duties of visiting and publicly exhibiting said assets.

  • Since January 1, 2020, public aid for the first installation of young farmers provided for in the National Framework for Rural Development of Spain that is intended for the acquisition of a share in the capital of corporate agricultural companies. may be imputed in quarters in the tax period in which they are obtained and in the three following .

    Note: Also from January 1, 2020, the public aid for the first installation of young farmers provided for in the National Framework for Rural Development of Spain that is not intended for the acquisition of a stake in the capital of corporate agricultural companies, may be imputed as income from economic activities in quarters, in the tax period in which they are obtained and in the three following ones.

C. Overdue and uncollected credits

Capital losses arising from overdue and uncollected credits may be charged to the tax in which of the following circumstances occur:

  1. That a reduction established in a judicially approved refinancing agreement referred to in article 71 bis and the fourth Additional Provision of Law 22/2003, of July 9, Bankruptcy or in an out-of-court payment agreement referred to in Title X (articles 231 to 242 bis) of Law 22/2003, of July 9, Bankruptcy and, since September 1, 2020, Title III of the second book (articles 631 to 694) of Royal Legislative Decree 1/2020, of May 5, which approves the revised text of the Bankruptcy Law, becomes effective.

    Since September 1, 2020, the refinancing agreement and the out-of-court payment agreement were governed by the provisions of articles 697 to 720 of the consolidated text of the Bankruptcy Law, as amended by Royal Legislative Decree 1/2020, of May 5.

    However, since September 26, 2022, Law 16/2022, of September 5, reforming the consolidated text of the Bankruptcy Law ( BOE of September 6), replaces refinancing agreements and out-of-court payment agreements with a new institution, restructuring plans , which brings both together, although with some adaptations for debtors with lower assets, lower turnover or fewer employees. Restructuring plans, their approval, judicial approval and the challenge regime are regulated in Title III of Book Two of the consolidated text of the Bankruptcy Law.

  2. That, if the debtor is in a situation of bankruptcy, the agreement in which a reduction is agreed in the amount of the credit in accordance with the provisions of article 133 of Law 22/2003, of July 9, Bankruptcy, becomes effective, in which case the loss will be computed by the amount of the reduction.

    As of September 1, 2020, articles 393, 394 and 395 of Royal Legislative Decree 1/2020, of May 5, approving the revised text of the Bankruptcy Law, must be taken into account.

    Otherwise , if the reduction is not agreed, the loss may be imputed when the bankruptcy proceedings conclude without the credit having been satisfied unless the conclusion of the bankruptcy is agreed for the following reasons referred to in sections 1, 4 and 5 of article 176 of Law 22/2003, of July 9, Bankruptcy and, since September 1, 2020, sections 1, 6 and 7 of article 465 of Royal Legislative Decree 1/2020, of May 5, which approves the revised text of the Bankruptcy Law.

    The aforementioned causes for the conclusion of the competition are:

    • Once the Provincial Court's decision revoking the bankruptcy declaration on appeal is signed.

    • At any stage of the procedure, when payment or deposit of all the recognised credits or full satisfaction of the creditors by any other means is verified or when the situation of insolvency no longer exists.

    • Once the common phase of the competition has concluded, when the resolution accepting the withdrawal or waiver of all recognized creditors becomes final.

  3. That the period of one year has elapsed since the start of the judicial procedure other than those of bankruptcy that have as their object the execution of the credit without it having been satisfied.

    When the credit is collected after the capital loss has been calculated, a capital gain will be recorded for the amount collected in the tax period in which said collection occurs.

D. Income pending imputation

Regulations: Articles 14.3 and 4 Personal Income Tax Law and 63 Regulation Personal Income Tax

  1. Loss of taxpayer status due to change of residence

    In the event that the taxpayer loses his status due to a change of residence, all income pending imputation must be integrated into the tax base corresponding to the last tax period to be declared for personal income tax, with a supplementary self-assessment being carried out, where appropriate, without any penalty, late payment interest or surcharge.

    However, if the change of residence occurs to another Member State of the European Union , the taxpayer is given the option of applying the previous rule or of presenting, as each of the income pending imputation is obtained, a complementary self-assessment without penalty, late payment interest or any surcharge, corresponding to the last period that must be declared by the IRPF . The self-assessment must be submitted within the declaration period for the tax period in which said income should have been imputed had the loss of taxpayer status not occurred.

    Also, take into account the special regime of capital gains due to change of residence of article 95 bis of the IRPF law which is discussed in section " Special regime: Capital gains from change of residence " of this Chapter.

  2. Death of the taxpayer

    In the event of the taxpayer's death, all income pending imputation must be included in the tax base of the last tax period to be declared.