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V0395-18 15 February 2018 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · condición resolutoria

Termination of a sale and purchase agreement generates capital gains from the penalty clause amount

A taxpayer sold a property subject to a resolutory condition for non-payment, which was judicially enforced, allowing the seller to retain the amounts already collected. The Tax Agency states that this generates a capital gain equal to the amount of the compensation received.

The question raised

Impact of the resolution of the contract on Personal Income Tax.

The DGT's ruling

The resolution of the contract with retroactive effect eliminates the initial change in assets and creates a new one through the incorporation of the amounts from the penalty clause. This capital gain is quantified by the indemnity amount and must be attributed to the tax period in which the judgment becomes final. As it does not derive from a transfer, it is integrated as general income into the taxpayer's taxable base. To exclude the gain from the original sale, a rectification of the tax returns must be requested.

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