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Practical manual for Income Tax 2023.

Concept and requirements of descendants

Subject

For the purposes of applying this minimum, the following are considered "descendants": children, grandchildren, great-grandchildren, etc. ., who are descendants of the taxpayer and who are related to him/her by a direct blood relationship or by adoption, without including persons related to the taxpayer by a collateral line (nephews) or by affinity (stepchildren).

For these purposes, descendants are considered to be those persons linked to the taxpayer by reason of guardianship or foster care, in the terms provided for in the applicable civil legislation or, outside of the previous cases, those who have been assigned their care and custody by court order.

Guardianship:

Please note that, as of September 3, 2021, the date of entry into force of Law 8/2021, of June 2, which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity, guardianship is reduced to minors not subject to parental authority or not emancipated in a situation of helplessness, being eliminated for adults, for whom guardianship and other measures to support their legal capacity are established.

In accordance with the above, the references contained in the Personal Income Tax Law to guardianship, in the case of persons of legal age with disabilities, are currently understood to refer to both guardians appointed by court rulings prior to Law 8/2021 (as long as a new court ruling has not been issued replacing them with new measures adapted to Law 8/2021), as well as to curators with representative functions appointed after the entry into force of Law 8/2021 (both in court rulings relating to cases of new disability situations, and in court rulings issued to replace other rulings prior to said Law 8/2021).

Requirements

The minimum may only be applied to the taxpayer's descendants and those similar who meet each and every one of the following requirements :

a) That the descendant , in the terms discussed above, is under 25 years of age on the date of accrual of IRPF (normally, December 31 or on the date of death of the taxpayer if he or she dies on a day other than December 31), unless they are descendants with a degree of disability equal to or greater than 33 percent , in which case the minimum for descendants may be applied, regardless of their age, provided that the remaining requirements are met.

b) That the descendant lives with the taxpayer .

The sporadic absence of a child from the habitual residence during the school year does not break the requirement of cohabitation required for the taxpayer to be able to apply the minimum for descendants, as long as the rest of the requirements established in this regard are met.

However, in this case it must be taken into account that economic dependency is assimilated to cohabitation, unless annual maintenance payments are made in favor of said children, which are taken into account for the calculation of the full quota.

In cases of separation or divorce or absence of a marital bond, the criteria to be taken into account are the following:

  1. Parent who has been assigned custody of the children, has the right to apply the minimum for descendants.

    In the case of joint custody of children, the minimum for descendants will be prorated equally between both parents, regardless of who the descendant lives with on the accrual date.

  2. The parent who pays annual alimony for the children and who has not been assigned custody of these , not even on a shared basis, will apply the regime provided for annual alimony, but not the minimum for descendants. Therefore, the economic dependency that payment of these entails cannot be considered cohabitation for the purposes of applying the minimum for descendants.

  3. The parent who without having been assigned custody of the children, not even on a shared basis, and without paying annual child support payments in their favor by court decision nevertheless contributes to their financial support, will be entitled to the application of the minimum for descendants based on the dependency criterion referred to in article 58 of the , (economic dependence that is assimilated to cohabitation), a minimum that must be prorated equally with the parent who has custody.

On the other hand, in the event that the custody and guardianship of a child is terminated upon reaching the age of majority, the minimum for descendants will continue to apply as long as the parent taxpayer in question continues to live with the child. Likewise, if the adult descendant begins to live with the parent who pays annual maintenance payments, he or she will be entitled to the minimum, and not to the application of said annual payments.

See table application of the minimum per descendant and the option for joint taxation in the case of legal separations, divorces and annulments of spouses with children.

Note: according to the Resolutions of the TEAC of May 29, 2023, Claims numbers 00/08646/2022 and 00/10590/2022, both of which were extraordinary appeals for unification of criteria, the parent who pays child support annuities and who has not been assigned custody of the children, not even on a shared basis, will apply the regime provided for child support annuities but not the minimum for descendants, without having in this case the possibility of choosing between the application of the minimum for descendants of article 58 of the Personal Income Tax Law and the specialties of articles 64 and 75 of the Personal Income Tax Law .

c) That the descendant has not obtained in the year 2023 income exceeding 8,000 euros per year , excluding income exempt from tax.

Note: For these purposes, the concept of annual income is constituted by the algebraic sum of net income (from work, movable and immovable capital, and economic activities), income imputations and capital gains and losses computed in the year, without applying the integration and compensation rules. However, the income must be computed at its net amount, that is, once the expenses have been deducted but without applying the corresponding reductions, except in the case of income from work, in which the reduction provided for in article 18 of the Income Tax Law may taken into account when applied prior to the deduction of expenses.

d) That the descendant does not file a IRPF declaration with income exceeding 1,800 euros .

The following clarifications must be made in relation to this requirement:

  • Individual taxation of the descendant. If the descendant files an individual IRPF declaration, whether it consists of a self-assessment or a draft declaration duly signed or confirmed, with income equal to or less than 1,800 euros, taxpayers with the right to apply the minimum for descendants, provided that the remaining required conditions are met. If their income is greater than 1,800 euros, none of them can apply the minimum for descendants.

  • Joint taxation of the descendant with both parents. If the minor descendant files a joint return with his or her parents, they may apply the corresponding minimum per descendant in said return, provided that the remaining required conditions are met.

  • Joint taxation of the descendant with one of the parents in cases of legal separation or when there is no marital bond . In these cases, the father or mother who pays taxes jointly with the descendants who form part of the family unit will apply the full minimum for descendants corresponding to them, and the other parent will not be entitled to the minimum when the children file a tax return, provided that the latter have incomes greater than 1,800 euros.

    If the condition of having income exceeding 1,800 euros is not met, the minimum for descendants will be distributed equally between the parents with whom the descendant lives, even when one of them pays taxes jointly with the children.

    In this last case, if one of the parents does not apply the minimum for descendants that corresponds to him/her (50%), the other parent does not have the right to apply the entire minimum for descendants.

    This same rule is applicable in cases where children under shared custody pay taxes jointly with one of their parents.

    However, if one of the parents dies during the tax period, and the descendant's income is greater than 1,800 euros, the minimum will be prorated 50% between the two parents, provided that the deceased parent at the date of death was entitled to the minimum for descendants, it being irrelevant whether the surviving parent pays taxes jointly with the descendant.

    See table application of the minimum per descendant and the option for joint taxation in the case of legal separations, divorces and annulments of spouses with children.

    Note: Please note that among the modalities that appear as family units, the one formed by the guardian and the person under guardianship is not contemplated, nor the case of foster care or, outside of these cases, of those who have been assigned their custody and care by court order, which prevents any possibility of jointly paying taxes for the IRPF in such cases.

Special case: death of one of the parents

In cases where one of the parents dies during the year, whether or not they are married, and the minor children or legally incapacitated adults subject to extended or rehabilitated parental authority have lived with both parents until the date of death, the minimum for descendants will be prorated in all cases between the parents, even if the other surviving parent pays taxes jointly with the minor children and they have incomes exceeding 1,800 euros, since it is considered that on the date of accrual of the tax both parents have the right to apply it.

Remember: in the terms previously mentioned, in the current fiscal year 2023 the taxpayer can apply the minimum for descendants in cases where these descendants, in order to obtain a refund, file an individual declaration for the IRPF , provided that the declared income does not exceed 1,800 euros.