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V0002-25 2 January 2025 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · donación

The donation of real estate to spouses under the community property regime creates separate property for each spouse

A taxpayer asks how the donation of real estate from his mother to him and his spouse, married under the community property regime, is taxed. The DGT responds that the real estate will be separate property for both in equal shares and not property of the community of property.

The question raised

Question posed: Taxation of the transaction in accordance with the Supreme Court doctrine established in judgments 98/2024 and 1016/2021.

The DGT's ruling

The donation of real estate to two spouses married under the community property regime constitutes the acquisition of a separate asset for each by halves. This generates two taxable events in the Inheritance and Gift Tax, with each spouse being the taxpayer for half of the asset. The Supreme Court jurisprudence cited does not apply because it concerns the contribution of separate assets to the community property regime, a different scenario from the one analyzed.

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