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V0620-17 9 March 2017 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · mínimo por descendientes

Right to child tax allowance depends on the judicial validity of the regulatory agreement regarding custody

A divorced taxpayer asks whether to apply the child tax allowance or the maintenance deduction for a child who has changed residence. The DGT rules that, in the absence of a judicial resolution modifying the original agreement, the judicially ratified terms prevail.

The question raised

Whether in the 2016 Personal Income Tax return, the taxpayer must include their child in the minimum for descendants at 100%, or conversely, whether they must include the amounts paid for their minor child in box "471" corresponding to alimony annuities.

The DGT's ruling

Modifications to a regulatory agreement that are not processed through the procedures established by the Civil Procedure Law lack validity against third parties. In the absence of judicial approval of the changes, they lack tax effectiveness for the application of the minimum for descendants. Therefore, if the judicially ratified agreement attributes custody to the taxpayer, they are entitled to the reduction for descendants. The application of specialities for alimony annuities is not applicable if they are not satisfied by judicial decision.

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