Capital gains and losses obtained in the year

Regulations: Art. 11.5 Law Income Tax

To determine to whom the capital gains and losses accrued during the year should be attributed, the Tax Law establishes a general rule and a special rule.

General rule

1. When ownership of the assets or rights is proven

   Capital gains and losses are considered to be obtained by the person who owns the assets, rights and other assets from which they come, and it is said person who must declare them.

   In cases where ownership of the assets or rights corresponds to several persons, the income will be considered to be obtained by each of them in proportion to their participation in said ownership.

   In the case of marriage, and in accordance with this general rule, capital gains and losses derived from assets and rights that, in accordance with the provisions or agreements regulating the corresponding matrimonial economic regime, are common to both spouses, will be attributed equally to each of them, unless they justify another share of participation.

   On the contrary, capital gains or losses derived from private property or rights correspond to the spouse who owns them.

   Free contribution of a private asset by one of the spouses to the community property

   The contribution made by one of the spouses to the community property of a private asset is considered, after said contribution, to be owned equally by both spouses. For the contributor, it represents an alteration in the composition of his/her assets capable of generating a capital gain or loss in the IRPF in accordance with the provisions of article 33.1 of the IRPF Law , which will be determined, pursuant to article 34 of said Law, by the difference between the acquisition and transfer values of half of the asset contributed. See in this regard the TEAC Resolution of January 23, 2024. Claim number 00/020204/2023, filed in an extraordinary appeal for unification of criteria.

2. When the ownership of assets or rights is not duly accredited

   When the ownership of assets or rights is not duly accredited, the tax authorities shall have the right to consider as the owner the person who appears as such in a tax register or other public register, to whom the capital gains or losses derived from said assets or rights shall be attributed.

   Unjustified profits will be imputed according to the ownership of the assets or rights in which they are expressed.

   This is considered to be the assets or rights whose ownership, declaration or acquisition does not correspond to the income or assets declared by the taxpayer, as well as the inclusion of non-existent debts in any declaration for this IRPF or for the Wealth Tax, or its registration in official books or records. For these purposes, unjustified profits will be integrated by the tax authorities into the general taxable base of the tax period in which they are discovered, unless the taxpayer sufficiently proves that he or she has been the owner of the corresponding assets or rights since a date prior to the limitation period. (Art. 39 Law Income Tax ).

   Note: Please note that Article 39 of the Personal Income Tax Law has been amended by the Fifth Final Provision of Law 5/2022, of March 9, which modifies Law 27/2014, of November 27, on Corporate Income Tax, and the revised text of the Non-Resident Income Tax Law, approved by Royal Legislative Decree 5/2004, of March 5, in relation to hybrid asymmetries, as a result of the Judgment (CJEU) of January 27, 2022 (case C-788/19) which required certain aspects of the legal regime associated with the obligation to declare assets and rights abroad (form 720) to be adapted to European law. 

   Note: Capital gains or losses derived from elements related to the development of economic activities will be attributed according to the rules previously mentioned, so that, in the case of affected joint property, the capital gain or loss obtained will be attributed equally to both spouses.

Special rule

According to the special rule, capital gains consisting of acquisitions of assets and rights that do not derive from a prior transfer, such as gambling winnings and similar cases, are attributed to the person who has the right to obtain them or who has earned them directly.

In the case of capital gains arising from a subsidy, they will be attributed solely to the taxpayer to whom the subsidy was granted, regardless of the use made of it.

See in this regard the resolution of the TEAC of June 1, 2020, Claim number 00/00670/2019 , issued in an extraordinary appeal for unification of criteria.