Skip to content
Back to index
V0142-22 28 January 2022 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · usufructo viudal

Exchange of usufruct for bare ownership subject to IHT and ITPAJD depending on the circumstances

A query was raised regarding whether the exchange of widow's usufruct for bare ownership between a mother and her children is taxed as an excess of adjudication. The DGT ruled that, if there is a will containing a legacy of usufruct, this constitutes two distinct legal transactions: the inheritance (IHT) and a subsequent exchange (ITPAJD).

The question raised

In the event that the father dies before the mother and no excess adjudication occurs in the dissolution of the community property regime, the taxpayer wishes to know the taxation in the case where the usufruct is commuted for bare ownership between the mother and the children and assets are adjudicated in full ownership.

The DGT's ruling

If a will exists with a legacy of usufruct, the acceptance of the inheritance is taxed under ISD (usufruct for the widow and bare ownership for the heirs). Subsequent commutation constitutes an independent legal transaction of exchange taxed under ITP and AJD. Article 57 of the RISD only applies if the commutation affects forced heirship rights attributed ex lege, not testamentary legacies.

Book your free first meeting