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A consultant and his wife (under community property regime), along with a brother, wish to dissolve a co-ownership by awarding the flat to the couple and paying the brother his share. The DGT ruled that, because the asset is awarded to two people rather than a single person, the indivisibility exception does not apply, and tax must be paid on the excess award.
Cuestión planteada Son tres las cuestiones planteadas:
La adjudicación de un bien a dos comuneros no supone la extinción de la comunidad, sino una disolución parcial o separación de un comunero. Al no adjudicarse el bien a un único comunero, no se aplica la excepción del artículo 1.062 del Código Civil. Por tanto, el exceso de adjudicación recibido por los cónyuges se considera una transmisión patrimonial onerosa sujeta a ITP.
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