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Practical Guide to Income Tax 2025. Part 1.

3. Advance disposition of the assets or rights provided

Regulations: Art. 54 . 5 Law Income Tax

Note: Acts of early disposal are not considered to be those that, subject to the administration regime of the aforementioned Law 41/2003, involve an active administration of the protected assets aimed at maintaining the productivity and integrity of the assets.

The assets and rights contributed to the protected assets of persons with disabilities cannot be disposed of in the tax period in which the contribution is made or in the following four.

Once this period has elapsed, any acts of disposal carried out will have no tax consequences with respect to the tax benefits applied in relation to these contributions.

Notwithstanding the foregoing, it is permitted, on an exceptional basis, to carry out acts of disposal in advance, without respecting the period required in article 54.5 of the Law of IRPFABBR, and without said acts giving rise to the corresponding regularization of the reductions already made. Thus, for example, the application of contributions made to the protected assets to the performance of the following acts will not give rise to regularization:

  • Making financial or real estate investments, provided that it is carried out in accordance with the administration regime regulated in Article 5 of Law 41/2003, of November 18, on the protection of the assets of persons with disabilities and amending the Civil Code, the Civil Procedure Law and the Tax Regulations for this purpose (BOE of November 19) and the new asset acquired replaces the asset or right initially contributed to the protected estate. The above implies that the calculation of the period established in article 54.5 of the Personal Income Tax Law will be carried out in relation to the asset or right initially contributed or that which may replace it, for which the appropriate identification of the same will be necessary.

  • Meeting the vital needs of the asset holder with the fruits and returns of the established assets.

  • Acts that involve active management of assets carried out in accordance with the management regime provided for in Law 41/2003, such as the expenses necessary for the constitution of assets and for the incorporation of additional assets into them.

Note that the expenditure of money and the consumption of fungible goods integrated into the protected estate, when made to meet the vital needs of the beneficiary, should not be considered as a disposal of assets or rights, for the purposes of the requirement to maintain the contributions made during the four years following the exercise of their contribution established in article 54.5 of the Law of IRPFABBR.

Failure to comply with this requirement, except in cases of death of the owner of the protected assets, the contributor or the workers referred to in the current article 37.2 of the LIS, entails the following tax obligations, which are discussed below:

a) Obligations for the contributor of the PIT.

The contributor must replace the reductions in the taxable base unduly made by submitting the appropriate supplementary or corrective self-assessment (from 2024) including the applicable late payment interest, within the period between the date of the disposition and the end of the regulatory declaration period corresponding to the tax period in which the disposition is made.

b) Obligations for the owner of the protected assets.

The owner of the protected assets who received the contribution must include in the taxable base the portion of the contribution received that was not included in the tax period in which the contribution was received due to the application of the exemption regulated in article 7.w) of the Law of IRPFABBR, by submitting the appropriate supplementary or corrective self-assessment (from 2024) including any applicable late payment interest, within the period between the date of the provision and the end of the regulatory declaration period corresponding to the tax period in which the provision is made.

Contributions made to the protected assets of persons with disabilities are considered as work performance contributions for the person with disabilities, but they benefit from the exemption regulated in article 7.w) of the Law of PIT which reaches a maximum annual amount of three times the IPREM.

In cases where the contribution has been made to the protected assets of relatives, spouses or dependents of workers under guardianship or foster care, by a taxpayer of Corporate Tax, the obligation to regularize described in the previous section must be fulfilled by said worker.

The employee who owns the protected assets is obliged to inform his contributing employer of any advance provisions made during the tax period.

In cases where the provision has been made from the protected assets of relatives, spouses or dependents of workers under guardianship or foster care, the aforementioned communication must also be made by said worker.

Failure to communicate or making false, incorrect or inaccurate communications will constitute a minor tax offence punishable by a fixed monetary fine of 400 euros.

Note: In the case of homogeneous assets or rights, it will be understood that those contributed first were disposed of.