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 property to the community property, in the resolutions in response to binding consultations V1920-22 (contribution of real estate) and V2032-22 (contribution of money).
The General Directorate of Taxes modified its criteria included in the resolution to the binding consultation V2921-21, of November 19, 2021, in application of the doctrine established by the Supreme Court in its ruling 295/2021, of March 3, 2021 , of which it reproduces the highlights.
The contribution of private assets to the community property may be free or onerous, or participate in 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 cases of contribution of money, as it is a lucrative operation, it will not be taxed in the form of onerous property transfers of the Tax on Property Transfers and Documented Legal Acts, nor in the Inheritance and Donation Tax, as the property company is not subject. liability of said Tax. Nor will the contribution 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 the Tax 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, 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, as it is a lucrative operation, it will not be taxed by ISD and will be subject to ITPAJD in its Acts modality Documented Legal Documents, but will be exempt from it, in application of article 45.IB) 3 of TRLITPAJD .
All of this regardless of the treatment that the operation may have in the Personal Income Tax of the contributor due to the alteration of assets derived from the contribution.
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