Specialty in the treatment of annuities for alimony in favor of children

Clarifications

• Who applies the special requirements in determining the full state and regional share for the payment of annual child support payments?

  The parent or parents who have custody of the children may apply the minimum for descendants, for the descendants who live with them , and may not apply the special provisions applicable in the cases of annual alimony in favor of children set out in articles 64 and 75 of the Personal Income Tax Law . In the event that the custody of a child is terminated upon reaching the age of majority, the above will apply as long as the parent taxpayer in question continues to live with the child.

  On the other hand, the parent who pays annual maintenance payments to children under the terms provided for in article 7. k) of the Personal Income Tax Law and who has not been assigned the custody of these, not even in a shared manner, will apply the regime provided for the annuities for food, 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. See in this regard the TEAC resolutions of May 29, 2023 (claims numbers 00/08646/2022/00/00 and 00/10590/2022), issued in an extraordinary appeal for unification of criteria.

  In short, the regime provided for in articles 64 and 75 of the Personal Income Tax Law is only applicable to parents who, while paying annual maintenance payments to their children by court decision, do not live with them in any way. Unlike these, parents who have sole or shared custody will have the right to have the minimum amount for descendants applied to their children.

• Where should the annual alimony payments for children be established?

  Following the amendments introduced by Law 15/2015, of July 2, on Voluntary Jurisdiction, the regime established in articles 64 and 75 of the Income Tax Law for annual child support payments made by court decision is extended to those agreed upon in the regulatory agreement drawn up by the spouses before the court clerk or in public deed before Notary, as referred to in article 90 of the Civil Code, whether or not its inclusion mandatory.

  What is the date from which payments made in the form of annual child support payments have an impact on personal income tax?

  According to the provisions of article 89 of the Civil Code, “The effects of the dissolution of marriage by divorce will occur from the finality of the sentence or decree that so declares or from the manifestation of the consent of both spouses granted in a public deed in accordance with the provisions of article 87.”

  Therefore, for the purposes of applying the special regime applicable in cases of annual maintenance payments for children provided for in articles 64 and 75 of the Personal Income Tax Law, only the amounts paid for this concept since the finality of the court judgment or decree, or since the granting of a public deed declaring the divorce, must be taken into account.

• How is the amount of child support payments to which the specialty regime applies calculated?

  For the calculation of the annual maintenance payments for children to which the specialty regime of articles Income Tax Law applies the monetary amount that has actually been paid in the form of annual maintenance payment will be taken into account, taking into account the provisions of article 142 of the Civil Code which states the following:

  "Food is understood to be everything that is essential for sustenance, housing, clothing and medical care.

  Maintenance also includes the education and instruction of the person receiving support while he or she is a minor and even afterwards, when he or she has not completed his or her education for reasons not attributable to him or her.

  Food will include pregnancy and childbirth expenses, unless otherwise covered.”

  Please note that the update of the amount of the annual food allowances in accordance with the CPI will be declared in the tax period in which said update is satisfied.

Note: Taxpayers who pay child support annuities as provided for in article 7 of the Tax Law will apply the general tax scale separately to the child support annuities from the rest of the general taxable base, but not the minimum for descendants. See in this regard the TEAC Resolutions of May 29, 2023, Claims numbers 00/08646/2022/00/00 and 00/10590/2022, both issued in an extraordinary appeal for unification of criteria.