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V0297-21 18 February 2021 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · conmutación del usufructo

Conversion of usufruct authorised by will is taxed as acquisition of full ownership via inheritance

A query was raised regarding whether the conversion of a universal usufruct into full ownership, expressly authorised by the testator, constitutes a separate legal transaction. The DGT has determined that, as this stems from the testator's will rather than the heirs', it does not constitute a new transaction and is taxed as a mortis causa acquisition of the assets in full ownership.

The question raised

Question raised 1) Taxation of the commutation of all or part of the universal usufruct in a testate succession subject to Common Law (Spanish Civil Code) in cases where the testator has expressly authorized the interested parties (spouse and heirs) to, if they so desire, commute all or part of the universal usufruct, attributing to them the full ownership of certain assets, provided that their value falls within the third of free disposal.

The DGT's ruling

If the commutation of the usufruct occurs due to testamentary provision (will of the testator) and not by the will of the parties, there is no legal transaction distinct from the acceptance of the inheritance. In this case, Article 57 of the RISD and the Supreme Court jurisprudence regarding distinct transactions are not applicable. The acquisition of assets in full ownership is retroactively dated to the death of the deceased and is taxed as a mortis causa acquisition in accordance with the LISD.

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