18.104.22.168. Amount of capital gains and losses
The amount of capital gains or losses will be:
In the case of onerous or lucrative transfer, the difference between the acquisition value and the transfer value of the assets.
In other cases, the market value of the assets or proportional parts, if applicable.
If improvements have been made (art. 34.2 Law) in the transferred assets, the part of the disposal value that corresponds to each component thereof will be distinguished.
ACQUISITION VALUE (art. 35 and 36 Law)
The acquisition value will be formed by the sum of the following concepts:
The actual amount for which said acquisition was made.
When the acquisition was for profit, the actual amount resulting from the application of the Inheritance and Donation Tax rules (art. 36 Law) will be taken as the actual amount, without exceeding the market value.
In lucrative acquisitions of companies or participations referred to in section 6 of article 20 of Law 29/1987, of December 28, on the Tax on Inheritance and Donations, the donee will be subrogated to the position of the donor with respect to the values and dates of acquisition of said assets (art. 36 Law).
The cost of the investments and improvements made to the acquired assets and the expenses and taxes inherent to the acquisition, excluding interest, that would have been paid by the acquirer.
Under the regulatory conditions established, this value will be reduced by the amount of amortization.
TRANSMISSION VALUE (art. 35.3 Law)
The transfer value will be the actual amount for which the sale would have been carried out.
The amount actually paid will be taken as the actual amount of the sale value, provided that it is not lower than the normal market value, in which case the latter will prevail.
From this value the expenses and taxes inherent to the transmission will be deducted as soon as they are paid by the transferor.
When the transfer was for profit, the actual amount resulting from the application of the Inheritance and Donation Tax rules will be taken as the actual amount.
AMORTIZATIONS (art. 40 Regl.)
The acquisition value of the transferred assets will be reduced by the amount of tax-deductible amortization, calculating in any case the minimum amortization, regardless of its effective consideration as an expense.
For these purposes, the minimum amortization will be considered the result of the maximum amortization period or the corresponding fixed percentage, depending on each case.
Amortization may only be reduced when it involves the transfer of assets for which it could have been computed as a deductible expense, that is, fundamentally in the following cases:
Transfer of real estate that is or has been leased (and, where applicable, with the furniture delivered together with them).
Transfer of assets that are or have been affected by an economic activity carried out by the taxpayer
Transfer of personal property, businesses or mines that are or have been leased.
Amortization should not be computed in the case of non-leased real estate, or other assets other than those indicated above, in which no amount has been tax deductible as amortization.