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V0298-21 18 February 2021 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · sociedad de gananciales

The free contribution of separate property to a community property regime is taxed at 50% of its value

A query was raised regarding whether the contribution of separate real estate to a community property regime is taxed on its total value or only half. The Directorate General for Taxes (DGT) ruled that, as the community property regime lacks separate legal personality, only the ownership interest belonging to the other spouse is transferred.

The question raised

Taxation of the contribution to the community property regime of a private asset and whether the tax base would be 100 percent of the value of the asset or only 50 percent thereof, given that one of the members of the community property, the contributor, is also already the owner of 50 percent of the private asset.

The DGT's ruling

If the contribution is gratuitous, it is subject to Inheritance and Gift Tax based on the net value of the acquired assets. Since the contributor already owns 50% of the asset, the transfer only affects the portion received by the other spouse. Therefore, the tax base shall be 50% of the value of the private asset contributed. If the contribution were onerous, it would be exempt from Transfer Tax and Stamp Duty.

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