The General Directorate of Taxes determines the taxation of the contribution of assets to the community property
The General Directorate of Taxes has examined the taxation of the contribution of assets to a community property, in the resolutions in response to the binding consultations V1920-22 (contribution of real estate) and V2032-22 (contribution of money).
The General Directorate of Taxes modified its criteria contained in the resolution to the binding consultation V2921-21, dated November 19, 2021, in application of the doctrine established by the Supreme Court in its ruling 295/2021, dated March 3, 2021, of which it reproduces the most important aspects.
The contribution of private assets to the community property may be free or onerous, or may be of both natures, depending on the tax treatment of the aforementioned contributions.
The General Directorate of Taxes resolves the assumptions raised in the aforementioned consultations and resolves that:
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In the case of contributions of money, as it is a lucrative operation, it will not be taxed under the modality of onerous property transfers of the Tax on Property Transfers and Documented Legal Acts, nor in the Tax on Inheritances and Donations, as the community property is not a taxpayer of said Tax. The contribution will also not be subject to the Tax on Property Transfers and Documented Legal Acts, in its form of documented legal acts, notarial documents, because said monetary contribution does not meet the requirements established in article 31.2 of the consolidated text of the Law on Property Transfers and Documented Legal Acts, approved by Royal Legislative Decree 1/1993, of September 24; In any case, even if it were subject to this tax, it would be exempt from said tax, in application of number 3 of article 45.IB).
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In the case of the contribution of real estate, being a lucrative operation, it will not be taxed by the ISD and will be subject to the ITPAJD in its Documented Legal Acts modality, but will be exempt from it, in application of article 45.IB) 3 of the TRLITPAJD .
All of this is independent of the treatment that the operation may have in the Personal Income Tax of the contributing person due to the alteration of assets derived from the contribution.
You can consult the full text of the commented consultations in the following links: