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REAL ESTATE, NEXUS GROUP, INFORMS:

For the General Directorate of Taxes, the reference value of the Cadastre has the capacity to generate excess allocation, not contemplated in the operation in the terms initially foreseen. And taxpayers must pay taxes for said excess allocation. If they are compensated in cash, the applicable taxation will be in the Property Transfer Tax (ITP). And if they are not compensated in cash, said excess not compensated must be taxed in the Inheritance and Donations Tax.

However, the Supreme Court has clarified which excess allocations are subject to tax in the ITP and ISyD and which are not.

The Supreme Court leaves housing untaxed after a divorce.

The Supreme Court has returned to side with the taxpayers against the criteria of the autonomous haciendas. Specifically, it allows not to pay the award of the habitual residence after a divorce in the Inheritance and Gift Tax. (ISyD) because it estimates that there is no donation when one of the ex-spouses stays with the habitual residence and assumes 100% of the mortgage. In a judgment dated July 12, 2022 (appeal 6557/2020), the high court opens the door to request, tax refunds.

In other words, the high court considers that this non-compensated excess award should not be taxed as a donation. And because?

1º Because the excesses of adjudication, are foreseen only in the field of the ITP, and they are only taxed in this tax, and not in the ISyD. This is so, regardless of its origin.

2º Because in these cases there is no necessary "animus donandi" or intention to donate, to understand that we are dealing with a donation. And it is that the unequal distribution is a consequence of the irruption of the reference value, and not of the intention of the co-owners that one of them receives more than what he initially had in the community situation. In short, there is no record of the intention to make a donation, nor the acceptance of such a donation by the other co-owner.

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