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V0408-24 14 March 2024 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · pérdida patrimonial

Couple debts in separate property regime not losses unless judicially uncollectable

The consultant asks whether couple debts under a separate property regime can be treated as patrimonial losses. The DGT responds that debt alone does not create a loss since a credit right exists, and losses can only be recognised when the credit is judicially uncollectable under the law.

The question raised

The consultant asks "whether monetary non-payments between a spouse (myself) and my wife can be considered matrimonial losses and declared as such, and within what timeframe they could be offset".

The DGT's ruling

Non-payment between spouses under a regime of separation of assets does not constitute capital losses because the creditor maintains a right of credit. The loss only occurs when the right of credit becomes judicially uncollectible according to the circumstances of Article 14.2 letter k) of the Personal Income Tax Law. These circumstances include write-offs in refinancing agreements, the conclusion of insolvency proceedings without satisfaction of the credit, or the passage of one year in an unsuccessful judicial enforcement proceeding. If the loss occurs, it is integrated into the general taxable base.

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