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V0419-24 14 March 2024 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · sociedad de gananciales

Contribution of separate property to a community property regime triggers capital gains or losses for Income Tax purposes

A taxpayer inquired whether contributing their share of a separate property asset to a community property regime is subject to Income Tax (IRPF). The Directorate General for Taxes (DGT) ruled that, although the community property regime itself is not a taxpayer, the transaction alters the composition of the contributor's assets and generates a capital gain or loss regarding the portion that becomes the property of the other spouse.

The question raised

Personal Income Tax treatment of said contribution and whether Supreme Court Ruling no. 295/2021, of March 3, 2021, would be applicable.

The DGT's ruling

The contribution of a separate asset to the community property regime is considered, for Personal Income Tax purposes, as shared ownership at 50% between the spouses. This implies a change in assets for the contributor, generating a capital gain or loss for the portion transferred to the other spouse (in the case presented, 25%). The gain shall be determined by the difference between the acquisition and transfer values, and shall be included in the savings tax base.

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